The evolving role of national parliaments in the European Union: Ireland as a case study 9781526122568

Table of contents :
Front matter
Contents
List of tables
Preface
The development of a role for national parliaments in the European Union
Why are we augmenting the role of national parliaments in European affairs? should we continue to do so?
A slow adaptor? Eliciting a response from the Irish parliament to European integration
The Lisbon Treaty and economic crisis: catalysts for reform of the Oireachtas role in European Union affairs
Where we stand now: an overview of the role of the Oireachtas in European Union affairs
Looking to the future: reflections on how the role of the Irish parliament in European affairs might be improved
Bibliography
Index

Citation preview

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The evolving role of national parliaments in the European Union

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The evolving role of national parliaments in the European Union Ireland as a case study

GAVIN BARRETT

Manchester University Press

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Copyright © Gavin Barrett 2018 The right of Gavin Barrett to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-​in-​Publication Data A catalogue record for this book is available from the British Library ISBN 978 1 7849 9321 4 hardback First published 2018 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-​party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset by Out of House Publishing

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Contents List of tables Preface 1 The development of a role for national parliaments in the European Union 2 Why are we augmenting the role of national parliaments in European affairs? Should we continue to do so? 3 A slow adaptor? Eliciting a response from the Irish parliament to European integration 4 The Lisbon Treaty and economic crisis: catalysts for reform of the Oireachtas role in European Union affairs 5 Where we stand now: an overview of the role of the Oireachtas in European Union affairs 6 Looking to the future: reflections on how the role of the Irish parliament in European affairs might be improved Bibliography Index

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Tables 2.1 Dates of creation of existing European affairs committees or their predecessor committees in national parliaments 3.1 Production of reports by Joint Oireachtas Committee on the secondary legislation of the European Communities 3.2 Debates in the Houses of the Oireachtas on Reports of Joint Committees on the secondary legislation of the European Communities from 1973 to 1989 3.3 Visits by Ministers and Ministers of State at the Joint Oireachtas Committee on European Affairs 5.1 Statutes adopted by the Oireachtas in 2015 which had a significant connection with Ireland’s membership of the European Union 5.2 Statutes adopted by the Oireachtas in 2010 which had a significant connection with Ireland’s membership of the European Union 5.3 Proportion of statutory instruments adopted in 2010 and 2015 which had a significant connection with Ireland’s membership of the European Union 5.4 Briefings in advance of General Affairs Council meetings 2007–​15 5.5 Number of reports produced each year by the Joint Oireachtas Committee on European Affairs during the 30th Dáil 5.6 Number of reports produced each year by the Joint Oireachtas Committee on European Affairs during the 31st Dáil 5.7 Information notes submitted by Government departments/​ offices in 2015 5.8 Reports of all kinds produced by the Scrutiny Committee in 2009–​10 5.9 Number of EU legislative proposals referred to Sectoral Oireachtas Joint Committees for detailed scrutiny by Joint Oireachtas Committee on European scrutiny in 2010

92 123 126 131 181 183 185 209 211 211 218 219 222

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5.10 No of EU proposals considered by each Joint Committee in the period of the 31st Dáil 5.11 Scrutiny priorities identified in the 2015 Work Programme for Sectoral Joint Oireachtas Committees 5.12 Record of pre-​council briefings by Ministers of Joint Oireachtas Committees in 2015 in respect of the seventy-​eight Council meetings held that year 5.13 Commission information on Oireachtas participation in the process of political dialogue in 2010–​15 5.14 Commission information on Oireachtas participation in the process of political dialogue in 2006–​09 5.15 Political contributions submitted by individual Joint Oireachtas Committees under the political dialogue process in 2011–​15 (in the period of the 31st Dáil) 5.16 Topics considered at the ten meetings held by the Joint Committee on Justice, Equality, Defence and Women’s Rights in 2009 5.17 Topics considered at the twenty meetings held by the Joint Committee on Justice, Defence and Equality in 2015

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226 228 233 234 234 236 237 238

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Preface This book concerns the evolving role of national parliaments in the European Union. That role, as will be seen in Chapter 1, has developed considerably over time. It seems likely to continue to do so, and to feature centrally in efforts to ensure adequate democratic accountability exists in the institutional architecture of the Union. Why this should be so is an issue looked at in Chapter 2. The book focuses on one parliament as a case study in this regard: the national parliament of Ireland, the Oireachtas.The basic structure of that parliament is modelled on that of the United Kingdom. Ireland operates the so-​called Westminster system of parliamentary government. It has a bicameral legislature. Under the Irish Constitution,1 the two houses of the Oireachtas comprise the lower House, Dáil Éireann, commonly referred to simply as the Dáil, and the upper House, Seanad Éireann, referred to in common parlance as the Seanad or the Senate.2 Like the United Kingdom, Ireland joined the then European Communities on 1 January 1973. Chapter 3 examines the initial adaptations of its parliament to European integration and how Ireland’s domestic parliamentary accommodation of membership slowly changed over time. Particular focus is brought to bear in Chapter  4 on the considerable impact on domestic parliamentary arrangements of the recent banking and foreign debt crises and of the Treaty of Lisbon. Chapter 5 is devoted to an assessment of the role of the Oireachtas in European law and policy during the lifetimes of the 30th Dáil (2007–​11) and the 31st Dáil (2011–​16) –​the most recent periods during which comprehensive information is available –​before Chapter 6 turns to the topic of possible future reforms. The research in this book should be regarded as up to date to the end of the 31st Dáil (which was dissolved on 3 February 2016), although it has occasionally been possible to insert more recent material. Time and events have not stood still since the end of the period under study –​even if the implications for the Oireachtas role in relation to European Union affairs remain as yet largely unclear. The Oireachtas generally takes time to adjust in the wake of Dáil elections, given the constitutional requirement for Seanad elections to take place not later than ninety days after a dissolution of Dáil Éireann,3 and the time needed for the creation of the Committee structure in the wake of the election of each new Dáil and

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Seanad. The process did so with particular slowness in 2016, thanks in particular to the failure of any political party or viable coalition of parties to secure victory in the general election which followed the dissolution of the 31st Dáil. In brief, the sequence of events which has occurred since the period studied in the main part of this book has been as follows. At the request of the then  Taoiseach (or prime minister) Enda Kenny, the 31st Dáil was dissolved by President Michael D. Higgins on 3 February 2016. The subsequent general election for membership of the 32nd Dáil4 took place on 26 February, resulting in the election of 157 “Teachtaí Dála” (members of parliament, normally referred to as “TDs”) from forty constituencies across the country.5 Elections to the Seanad were completed by 26 April and the Taoiseach availed of his right to nominate eleven out of sixty senators on 27 May 2016. The 25th Seanad met at Leinster House for the first time on 8 June.6 The 32nd Dáil had already met for the first time on 10 March. The general election results had dealt a severe setback to Taoiseach Enda Kenny’s Fine Gael (although it remained the largest political party) and had devastated its junior Coalition partner, Labour.  No party or coalition of parties secured enough seats to govern without opposition cooperation. A new Fine Gael-​led administration could be formed only with some difficulty, only as a minority government and only after tortuously long negotiations.7 Agreement on a new government was ultimately reached only on 29 April, some sixty-​three days after the election. The agreement reached constituted a new phenomenon in Irish political life (even if one far from unknown in other parliamentary democracies based on the Westminster system): a so-called ‘confidence-and-supply’ agreement between the minority government formed by Fine Gael and some independents, on the one hand, and the Opposition Fianna Fáil party on the other. This (renewable agreement) lasts until the end of 2018, and involves Fianna Fáil facilitating government budgets which are consistent with agreed policy principles and either opposing or abstaining on confidence measures.8  Subsequently, on 6 May (on what was its fourth attempt) the Dáil finally re-​elected Enda Kenny as Taoiseach, making him the first ever Fine Gael party Taoiseach to win re-​election. (Notwithstanding this, the aftershock of the election was sufficient to lead to Kenny being replaced by Leo Varadkar as Taoiseach just over a year later, on 14 July 2017.) Perhaps unsurprisingly, given its minority status, the new administration has suffered from ongoing instability and an inability to ensure legislation is adopted at anything near the rate of previous parliaments.9 Neither the new administration nor the Oireachtas (and in particular, the Joint Committee on European Union Affairs) has lacked ongoing challenges in the European field. Principal among them is the challenge of dealing with the effects of the referendum vote on 23 June 2016 in the United Kingdom in favour of leaving the European

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Union  (so-called “Brexit”), the implementation of which has already and will continue to present difficult negotiating challenges for Irish governments, particularly given such factors as the high level of trade between the two states, the enduring interest of both states in maintaining the hard-​won peace in Northern Ireland secured by the 1998 Good Friday agreement after decades of political conflict and the political risks associated with a “hard” border between Northern Ireland and the Republic. The Oireachtas faces challenges which include imposing adequate democratic accountability, particularly in relation to Irish governmental involvement in any such (Commission-led) negotiations at Council and European Council level,10 and subsequently in relation to any arrangements which derive from them  –​ both vis-​à-​vis the European Union and vis-​à-​vis the United Kingdom. Its response to such challenges remains to be fully seen. On the positive side, the Oireachtas committee structure has seen some significant reforms. At the time of writing, the number of joint committees has been increased to twenty-​one. There has also been recourse to more over-​arching committees, an example of this being the establishment of the Dáil Select Committee on Budgetary Oversight in July 2016 with the objective of enhancing the role of the Oireachtas in the budgetary formation process, and which includes in its role consideration of the limitations arising from the application of EU fiscal rules. Use has also increased of ad hoc committees (including, to take one somewhat European-​related example, through the establishment of the Joint Committee on the Future Funding of Domestic Water Services, which sought to find a way ahead in the politically controversial field of water charges).11 Another change to the operation of committees is that efforts have been made to avoid previously endemic clashes between Dáil time and committee time (so that the Dáil now sits only in the afternoon). Of particular relevance to the contents of this book has been the formation of the Joint Oireachtas Committee on European Union Affairs, which held its first meeting in private on 19 July 2016, and its first public meeting on 7 September.The chair of the new group is Independent TD Michael Healy-​Rae, whose chairmanship reflects the very large number of independent members elected to the 32nd Dáil.12 The membership of the new Committee comprises seven TDs13 and four Senators,14 with the Committee’s composition capable of ensuring a pro-​ Government Independent–​Fine Gael majority  –​or, if not, effective control through conditional support on the part of the Opposition Fianna Fáil party.That much said, the Committee has traditionally operated in a non-​partisan manner in any case. In the twelve months following the first meeting of the new Dáil, the Joint Oireachtas Committee, however, met on only ten occasions.15 Even taking account of the greater role accorded to other sectoral committees which began

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in the previous (31st) Dáil period, this seems inadequate to establish systematic accountability in European affairs, although it is only fair to acknowledge that a considerable portion of the fault for this lies with (a) the (by now normal) slowness in re-​establishing the Oireachtas Committee system after the 2016 election and (b) the considerable delay on this occasion before it proved possible to put together any new government at all. As Chapter 5 of this book illustrates, it would be a mistake, however, in assessing the impact of the Oireachtas in European affairs, to focus on the role of the Joint Committee on European Affairs alone. Other formations of the Oireachtas have a role to play. The topic of Brexit, for example, has featured with great frequency in Oireachtas debates of all kinds, including Dáil questions, and can be expected to continue to do so in the two-​year period of negotiations on UK exit after the triggering by the UK government of the Article 50 exit clause in the Treaty on European Union.16 In the twelve months following the first meeting of the 32nd Dáil, four Joint Oireachtas Committees conducted seven debates or hearings on the issue17 –​including the Joint Committee on European Union Affairs (which held two of these hearings, and which also sent a delegation to Brussels in February 2017 to meet with the key individuals involved in the Brexit negotiations).18 The new Dáil Business Committee also hosted a half-​day symposium on the economic implications of Brexit on 22 September 2016 in the Mansion House for members of the Dáil, Seanad and European Parliament to inform debate in advance of the then forthcoming parliamentary session. Three members of the European Commission appeared before Dáil committees on separate occasions to discuss controversial issues including Brexit in the same twelve-​month period.19 Nor was there any sign of such activity reducing in intensity. Another interesting development in this field was the Seanad’s decision in February 2017 to establish a ten-​person cross-​party Seanad Special Committee on the Withdrawal of the United Kingdom from the European Union, in order to consider the implications for Ireland of Brexit. The Special Select Committee was to report to Seanad Éireann on 4 July 2017. From April 2017, it had become active in hearing submissions by a range of actors in political life (including two former Taoisigh), civil society and business. The Oireachtas may thus be said to have been active in informing itself and certainly not been entirely bereft of a public communications role in relation to European issues in the short lifetime to date of the 32nd Dáil. However, the establishment by the Government in November 2016 of an All-​Island Civic Dialogue on Brexit was also worthy of note. By late February 2017, this had met twice in plenary session and on fourteen separate occasions in sectoral meetings throughout the country. This process saw official efforts to communicate with the public concerning Brexit-​related issues move away from the Oireachtas to

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some extent, just as they had earlier during the 2001–​09 lifetime of the National Forum on Europe. It may thus be that the responsibility of such communication will continue to be shared by the Oireachtas rather than being borne exclusively to it in the near future. All of the foregoing EU-relevant changes and developments have taken place in the context of more broadly relevant parliamentary reforms being introduced in the 32nd Dáil period, including the election for the first time of a Ceann Comhairle, the introduction of the d’Hondt system to govern the appointment of committee chairs; the shifting of what was heretofore the Taoiseach’s prerogative (normally implemented by the Government party whips) to set the Dáil agenda to a Business Committee representing all groups in parliament; the empowerment of more groups to propose legislation; and moves towards improved administrative and legal supports for parliamentarians. Many of these developments had been long planned. Others were introduced effectively as the price of Opposition participation in negotiations on the formation of a Government. The effect of such changes remains to be seen: the 32nd Dáil has certainly garnered a reputation for less efficiency (particularly in legislating) than its predecessors. But this probably is in large part more properly ascribed to the minority status and consequent weakness of the Government than the negative effects of parliamentary reforms. A proper assessment of the true effect of the latter reforms may well have to await the future election of a majority regime, however.20 The writing of this book has involved the assistance of many. Particular thanks are due to Tony Mason of Manchester University Press, Professor Brigid Laffan, Michael Barrett, Della Barrett, Conor Barrett and the Honourable Judge Max Barrett,André, Hélène and Bernard Roussel-​Coumont, Maria Fitzsimons, Professor Heinrich Wolff, Professor Anneli Albi, Art O’Leary, Dr. Brian Hunt, Dr. Wolfgang Heusel, Professor John Horgan, Dr. Maurice Manning, Professor Blánaid Clarke, Professor Oonagh Breen, Professor Colin Scott, Professor Imelda Maher, Professor Joe McMahon, Caroline Fine, Noelle O’ Connell, Dr. Stephen Coutts, Ministers Paschal Donohue TD, Lucinda Creighton TD and Dara Murphy TD, Dr. Brendan Halligan, Noelle O’Connell, Úna Langan, Francis Jacobs, Gay Mitchell TD, Golda Hession, Catherine Lynch, Ciarán Smyth, Niall Ó Cléirigh, Seán Burke, Emer Deane, Elaine Gunne, Siobhán Malone, Ray Treacy, Ted McEnery, Rónan Gargan, Conor Gouldsbury and my other interlocutors among the staff of the Library and Research Service in the Oireachtas, and clerks and political advisors in Leinster House who were enormously helpful in responding to my queries, as well as the members of the various Oireachtas committees I have appeared before over the years, whose interest in my work has been greatly encouraging. Thanks are also due to the Erasmus Plus programme of the European Union, which supported my research by awarding me a Jean Monnnet professorship during the writing of this

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book. Finally, and most of all, my thanks are due to my wife Madeleine and to our children Marie-​Hélène, Stéphane, Sébastien and Matthieu for their patience in putting up with their Dad as this project drew to its completion.

Notes 1 See Article 15. 2 The continued existence of the Seanad was ensured on 4 October 2013 when a Government proposal to alter the Constitution to abolish the upper House was defeated. In a referendum held on that date on the Thirty-​second Amendment of the Constitution (Abolition of Seanad Éireann) Act 2013, 634,437 (51.7%) of the 1,240,729 voters who voted (a relatively low 39.2% turnout), rejected the Act (and thus to retain the Seanad). 591,937 (48.3%) of those voting cast their ballots in favour of the Act (and abolition of the Seanad). 3 See Article 18.8 of the Constitution. 4 Under Article 16.3.2 ° of the Constitution, a general election is required to take place not later than thirty days after a dissolution of Dáil Éireann. 5 The Ceann Comhairle (chairman) was in addition returned automatically, bringing the total membership of the new Dáil to 158. (Under Article 16.6 of the Irish Constitution, provision is required to be made by law to enable the member of Dáil Éireann who is the Ceann Comhairle immediately before a dissolution of Dáil Éireann to be deemed without any actual election to be elected a member of Dáil Éireann at the ensuing general election. Provision is currently made for this by s. 36 of the Electoral Act 1992.) 6 In terms of its composition, there are nineteen Fine Gael, fourteen Fianna Fáil, seventeen Sinn Féin, five Labour Party, one Green Party and fourteen independent members in the 25th Seanad. 7 The election results constituted something of an earthquake in terms of their implications for the established political parties. Fine Gael remained the largest party in the Dáil but with only fifty members (if one includes the automatically-​returned Ceann Comhairle) –​twenty-​six less than the total achieved in the 2011 election to the 31st Dáil (in which however they had not the advantage of having a Fine Gael Deputy automatically returned as Ceann Comhairle). A rejuvenated Fianna Fáil secured forty-​four. Sinn Féin attained twenty-​three, putting it in third place and the Labour Party achieved its worst-​ever result of only seven TDs (down from thirty-​seven in 2011, from which it emerged as the second-​largest party). A combination of independents and members of smaller parties secured the (very large) total of thirty-​four seats). 8 The text of the agreement is available in F. Kelly, “The Full Document: Fine Gael-Fianna Fáil Deal for Government”, Irish Times, 3 May 2016. 9 See for one recent assessment in this regard, H. McGee, “Ten Ways the Engine Room of Irish Politics Has Changed Since Last Year’s Election”, Irish Times, 28 February 2017. See also M. Lehane and C. McMorrow, “AYear On, Has ‘New Politics’ Gone Stale?” RTE.ie, 10 March 2017, S. Collins, “It’s Obvious That the Current Dáil is Unworkable”, Irish

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10 11

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13 14 15 16 17

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Times, 6 April 2017 and N. Whelan, “Current Dáil Remains a Very Feeble Legislator”, Irish Times, 5 May 2017. See regarding the respective roles of Council and European Council, Article 50 of the Treaty on European Union. This Committee finally reported in April 2017 after a fractious, highly-​publicised debate, a key feature of which were differing party political views as to what the need for any water funding regime to comply with the requirements of the EU Water Framework Directive (Directive 2000/​ 60/​ EC of 23 October 2000)  entailed. (See generally S. Bardon, “FF Concessions Seal Deal on Water Charges”, Irish Times, 12 April 2017.) As is noted in the text below, Committee chairs in the 32nd Dáil – including that of the EU Affairs Committee – were selected, for the first time ever, on the basis of the d'Hondt system. Healy-Rae's appointment made this the second successive occasion a chair has been appointed to the European Union Affairs Committee, who has not previously been noted for any expertise or interest in EU matters (although, in fairness, this has not previously prevented successful tenure of the position). Two of these are from Fine Gael, two from Fianna Fáil, one from Sinn Féin and two are independent members –​including the Committee chair –​who are loosely affiliated in the Rural Independent Group. Two of these are from Fine Gael, one from Fianna Fáil, and one is an independent member. This includes a joint sitting with the Joint Committee on Foreign Affairs and Trade, and Defence on 21 February 2017. A search on 17 May 2017 for the term “Brexit” on the website KildareStreet.com, in which it is possible to search through Oireachtas debates for particular terms, yielded a remarkable 1,805 hits. These debates were in the Joint Committee on European Affairs (on 8 November and 7 December 2016); in the Joint Committee on Agriculture, Food and the Marine (on 17 January and 24 January 2017); in the Joint Committee on Communications, Climate Action and Environment (on 14 and 28 February 2017); and in the Joint Committee on Foreign Affairs and Trade, and Defence (on 9 March 2017). This occurred on 7–​8 February 2017. See report at www.oireachtas.ie/​parliament/​ media/​committees/​euaffairs/​Report-​of-​the-​Committee-​Travel-​to-​Brussels-​7–​8-​ February-​2017.pdf (accessed on 12 May 2017). Commissioner Vice-​President Frans Timmermans appeared before a joint sitting of the Joint Committee on Foreign Affairs and Trade, and Defence and the Joint Committee on European Union Affairs on 21 February 2017 to discuss Brexit. The Commissioner for Competition Margrethe Vestager appeared before the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach to discuss the Commission’s controversial 2016 decision that tax arrangements in Ireland concerning companies in the Apple group constituted illegal state aid and Commissioner for Economic and Financial Affairs, Taxation and Customs Pierre Moscovici discussed EU corporate taxation strategy and EU investment and growth strategies with the same Committee on 24 January 2017. Michel Barnier, the Chief Negotiator for Brexit (appointed by the European

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Commission) addressed a joint session of the Dáil and the Seanad on 11 May 2017. (See further Commission website https://​ec.europa.eu/​info/​persons/​director-​head-​ service-​michel-​barnier_​en (accessed on 15 May 2017).) 20 See in this regard C. Lynch, E. O’Malley,T. Reidy, D. Farrell and J. Suiter, “Dáil Reforms Since 2011: Pathway to Power for the ‘Puny’ Parliament?” (2017) 65 Administration 37 at 55–56.

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1 The development of a role for national parliaments in the European Union

Introduction National parliaments: a role in the shadow of the Treaties This chapter seeks to examine the norms which the European Union (EU) has established regarding the role of national parliaments, and how these norms have evolved over time, and then offer some brief reflections on how domestic legal systems within the EU have tailored the role of their national parliaments in EU affairs. National parliaments were present at the birth of the EU. Each of the three original Community Treaties required approval by the national parliaments of all six founding member states. (Another treaty, the 1952 European Defence Community Treaty foundered in failing to secure passage through the French Assemblée Nationale.) The founding Treaties had very little to say about national parliaments, however. Even if some role was envisaged for them, national parliaments were nonetheless well described as having remained largely in the shadow of the Treaties.1 Several possible reasons can be identified for this early neglect. First, the early central focus of European integration was on solving a particular set of market and industrial problems. The institutional challenges presented to existing national structures by European-​level market creation were not the immediate focus. Secondly, the nature of the potential challenge posed to national parliaments was not initially clear. The Communities were sectoral organisations to begin with, in their scope if not in their ultimate aims. Thirdly, according to the classical federalist logic of European integration, efforts for developing European parliamentarianism were concentrated on the European Parliament, rather than on national parliaments.2 Insofar as European integration disempowered national

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parliaments, the solution was sought in compensating for this at European level, not by re-​empowering national parliaments.3 During the first decades of European integration, the democratising impulse concerned itself with gradually empowering the “Common Assembly”. The Assembly had emerged as something of an afterthought in the negotiations on the 1951 Coal and Steel Community Treaty, receiving no mention in the 1950 Schuman Declaration.4 It chose to rename itself the “European Parliamentary Assembly” on its first sitting in 1958,5 adopting the name “European Parliament” in 1962 –​a choice of name officially ratified by the Single European Act in 1987.6 Direct elections followed in 1979, and the introduction of the “cooperation” legislative procedure by the Single European Act in 1987 began the movement towards a greater Parliamentary role in the legislative process.The “co-​decision” legislative procedure, introduced by the Maastricht Treaty in 1993, gave the Parliament legislative powers largely equivalent to those of a national parliament and all subsequent amending Treaties have increased the scope of this procedure’s application, leading to its rechristening as the ‘ordinary legislative procedure’ at Lisbon.7 Although the European Parliament’s view of the national parliaments’ European role has emphasised the latter’s gap-​ filling potential in policy areas  where the Parliament itself has little power,8 from about the beginning of the 1990s, a shift in the overall democratisation debate took place, with a role alongside an increased role for the European Parliament now being widely envisaged for national parliaments. A fourth reason for neglecting national parliaments in the EU’s early years was that political incentives to remedy any erosion in national-​level democratic controls were lacking  –​national executives, not legislatures, were in the driving seat when it came to negotiating treaties. Fifthly, securing agreement on the involvement of national parliaments in a multi-​level organisation such as the EU has presented formidable intellectual and political challenges.9 The sui generis nature of the European Union arguably requires an equally unique approach in relation to the role of national parliaments, and the elucidation of this role has involved a time-​consuming process of conceptualisation, bargaining and trial-​and-​error. Sixthly, empowerment of national parliaments tends to be bedevilled by sensitivities regarding national sovereignty.10 Resistance –​including from national parliaments themselves –​to European-​level intervention regarding internal constitutional arrangements has made a cautious approach necessary. Hence the Preambles to Treaty Protocols on the role of national parliaments agreed upon at Amsterdam in 1997 and Lisbon in 2007 both began by carefully recalling that either the fact11 or manner12 of scrutiny was “a matter for the particular constitutional organisation and practice of each Member State”. Indeed, the wording of Article 12 of the Treaty on the Functioning of the European Union (TFEU) (agreed upon at Lisbon) had

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to be toned down, in the face of opposition from, among others, the House of Commons European Scrutiny Committee, from a prescription that “national parliaments shall contribute actively to the good functioning of the Union”13 to its present, merely descriptive, declaration that “national parliaments contribute actively to the good functioning of the Union”. In other words, national parliamentary resistance was encountered even to reforms empowering them vis-​à-​vis national executives.14

The genesis of change A case could always be made for according national parliaments a greater role in European matters, not only at national level, but also at European level,15 and one which, in some respects, has gradually strengthened. Empowerment of the European Parliament has not sufficed as a democratising mechanism for reasons including, but not confined to, the lack of identification between national electorates and the Parliament.16 Bebr’s 1953 observation that “the lack of supranational identification among the Community’s population” limited the role of the ECSC Common Assembly still holds good today.17 Low participation rates in European Parliament elections underline this point. Arguments favouring increasing the role of national parliaments included that this would help defuse claims of an EU-​level democratic deficit, bridge the gap between the EU and its citizens, and increase EU transparency. Such empowerment could also be argued to be needed to prevent the escape of national executives from democratic control with the gradual transfers over time in competences to what is now the EU. With the increased use of qualified majority voting, a European-​level role for national parliaments might also compensate for a loss of democratic control at national level in outvoted states. It might also compensate for the rupturing of links with national parliaments which occurred with the advent of direct European Parliament elections in 1979 (ending an initial period during which of the Parliament’s membership had been made up of delegates from national parliaments). An unmistakeable trend towards the gradual empowerment of national parliaments is certainly now evident. The rate of reform has, however, been slow and lacking in uniformity. It took four decades for the underlying seismic shifts in opinions pertaining to the appropriate role of national parliaments in the European Union to make themselves visible in the conclusions of intergovernmental conferences (IGCs). The temporal peaks (or perhaps plateaus) in the debate have been the negotiation and ratification of the Treaty of Maastricht in 1990–​93, the negotiation and ratification of the Treaty of Amsterdam in 1995–​ 99, and the lengthy process of Treaty reform that began with the Convention on

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the Future of Europe in 2001 and finally played itself out with the coming into force of the Lisbon Treaty in late 2009. In this chapter this evolution of the legal rules at European Union level which relate to national parliaments will be examined in more detail.

In the beginning: examining the original legal position of national parliaments in detail National parliaments were not initially afforded a key role in the day-​to-​day life of the European Economic Community (EEC). A  role was foreseen, but in only one respect was it expressly set out in the Treaties. Article 138(1) of the 1957 EEC Treaty stipulated that the Common Assembly of the (then) three Communities,18 “shall be composed of delegates whom the Parliaments shall be called upon to appoint from among their members in accordance with the procedure laid down by each Member State”. National parliaments thus supplied the Assembly’s membership. In this way, a link was established between them and the Community institutions. Article 21 of the earlier European Coal and Steel Community Treaty of 1951 had envisaged the breaking of this umbilical cord to national parliaments, providing that the Assembly shall be composed of delegates whom the parliaments of each of the member States shall be called upon to designate once a year from among their own membership, or who shall be elected by direct universal suffrage, according to the procedure determined by each respective High Contracting Party.

The anticipated  break occurred in 1979, with the first direct elections to the European Parliament, providing an incentive to find an alternative role for national parliaments. The 1979 elections were a pivotal moment in the Communities’ democratisation process. As Jančić has observed, the structural linkage with [national parliaments] was severed and two separate channels of parliamentary representation were born:  one operating directly at the Community level through the EP and one indirectly at the national level through [national parliaments]. Their mutual relationship has formally developed as one of amity, while informally the EP and [national parliaments] have gone through numerous patches of rivalry and institutional jealousy.19

Four other provisions of the original EEC Treaty seemed to envisage a role for national parliaments, although not in so many words. Article 236 of the EEC

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Treaty envisaged that future Treaty amendments should enter into force only “after being ratified by all Member States in accordance with their respective constitutional rules”. Such rules would, of course, normally involve national parliamentary intervention. Article 237 provided that agreements between the existing member states and applicant states, governing conditions of admission of the latter to the Community,20 had to “be submitted to all the contracting States for ratification in accordance with their respective constitutional rules”, and Article 201 provided for the Council laying down so-​called “own resources” provisions for the Community “whose adoption it shall recommend to the Member States in accordance with their respective constitutional rules”. Again, both processes would normally be expected to involve a role for national parliaments. Finally, the provision of Article 146 that the Council should be “composed of representatives of the Member States” and that “each Government shall delegate to it one of its members” seemed to anticipate some role for national parliaments, given that governments are normally accountable to their national parliament. In sum: of the five cases cited above, only in one was the role of national parliamentarians made explicit –​the composition of the Assembly stipulated by Article 138(1) –​and this, in itself, was a role subsequently to be lost following the onset of direct elections in 1979. Of the other –​implicit –​roles,21 three did not impinge in any way on the daily activities of what is now the Union.22 The remaining role of holding national ministers accountable was at the discretion of the member states and, in most member states, insofar as concerned European-level activities, its exercise remained for many years in the realms of legal fiction. In effect, national parliamentarians were offered no more than “opportunity structures” to obtain access to institutions such as Parliament and Council23 –​and no guarantee existed that these would be exploited with any great effectiveness.

From Maastricht to Nice: the evolution of the legal position of national parliaments Treaty changes were slow to arrive. A generalised desire to involve national parliaments more actively in European affairs seemed to take root in the late 1980s. Concerns were beginning to be expressed about a possible democratic deficit, and the reduced scope for national parliamentary power because of the involvement of national executives at EU level.24 Some studies, reports and proposals emerged from the European Parliament at around this time, indicating a desire to bring national parliaments into the equation.25 More prominently, 1989 saw the founding of an interparliamentary conference made up of parliamentarians specialising in

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European matters, later known as COSAC (which now stands for the Conference of Community and European Affairs Committees of Parliaments of the European Union). COSAC originally had no existence outside of its biannual meetings which would take place in whichever country held the Council Presidency and at which six members would represent each parliament (including the European Parliament). Since 2003, however, COSAC has had a small secretariat. It continues to operate to this day as a forum for the exchange of information and best practice rather than as a player in the policy-​making process at European level. A less enduring extra-​Treaty development of this time were the so-​called Assizes of Rome, held over four days in November 1990, in the Italian Chamber of Deputies. The Assizes drew together 173 parliamentarians from the member states, as well as 85 MEPs. Such developments were significant and were  built upon in subsequent Declarations, Protocols and even Treaty provisions.

Declaring the way ahead: the Treaty of Maastricht The first recognition by an IGC of the need for an increased role for national parliaments came about with the 1992 Maastricht Treaty.26 In a move proposed by the UK and France,27 the IGC which adopted this Treaty also adopted (legally non-​binding) Declaration (No. 13) on the Role of National Parliaments in the European Union and Declaration (No. 14) on the Conference of the Parliaments. Declaration No. 13 asserted that the Conference considers that it is important to encourage greater involvement of national Parliaments in the activities of the European Union. To this end, the exchange of information between national Parliaments and the European Parliament should be stepped up. In this context, the governments of the Member States will ensure, inter alia, that national Parliaments receive Commission proposals for legislation in good time for information or possible examination. Similarly, the Conference considers that it is important for contacts between the national Parliaments and the European Parliament to be stepped up, in particular through the granting of appropriate reciprocal facilities and regular meetings between members of Parliament interested in the same issues.

Lacking any legally binding force, the Declaration also promoted the idea of governments ensuring that national parliaments received legislative proposals in good time –​without, however, suggesting either that there should be any sanctions for failure to do so or that any deadline apply. The result was that governments could decide if and when to inform national parliaments of proposals.

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The statement in the Declaration that the Conference considered it important for contacts between national Parliaments and the European Parliament to be “stepped up” adverted implicitly to the fact that such contacts had already been taking place in the framework of COSAC since 1989. Declaration No. 13 did have some political effects. An intensification of the debate on parliamentary involvement in European affairs did take place between national parliaments and the European Parliament in the wake of the adoption of the Declaration.28 A very considerable increase in interparliamentary cooperation –​demonstrated by an increase in meetings of various kinds –​also came about in the mid-​1990s.29 Moreover, at domestic level, subsequent to Maastricht, improvements were effected in the information rights of most member states’ national parliaments.30 However, such rights were generally restricted to the obtaining of ex post facto information, rather than the right to participate in important policy decisions. The other relevant Declaration adopted at Maastricht was Declaration (No. 14) on the Conference of the Parliaments which provided that The Conference invites the European Parliament and the national Parliaments to meet as necessary as a Conference of the Parliaments (or “Assises”). The Conference of the Parliaments will be consulted on the main features of the European Union, without prejudice to the powers of the European Parliament and the rights of the national Parliaments. The President of the European Council and the President of the Commission will report to each session of the Conference of the Parliaments on the state of the Union.

This “attempt to strengthen the collective role of the national parliaments on the European level”31 proved unsuccessful and no such Conference was ever held.32 Although the November 1990 “Assizes of Rome” which had inspired this Declaration had successfully agreeing a declaration calling for Treaty reform, a feeling that the European Parliament had taken over the event led to several parliaments declining to repeat the experiment. A full decade later, in the 2001–​03 Convention on the Future of Europe (which produced the draft Constitutional Treaty), even​the support of Convention Chairman Valery Giscard d’Estaing for a revived Assizes with the modified name of a “Congress of the Peoples of Europe” proved insufficient to persuade the Convention to revive the idea. The Maastricht Treaty’s ratification process had positive effects for national parliaments, with extra rights being conferred on them (in some cases by national constitutions).33 The provision of supplementary information by governments (e.g., in the form of short commentary sheets) now became the norm in several member states.34 The more critical public attitude to European

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integration, which emerged at this time probably also assisted in the long term in the process of parliamentary empowerment.35 In the short term, however,  many national parliaments’ rights, post-​ Maastricht, continued to be confined, for the most part, to the ex post facto acquisition of information without any acquisition of influence over the management of European policy by national executives. Nevertheless, something of an awakening seems to have occurred on the part of many national parliaments as to the need to convince their governments to improve matters.

Protocols and parliaments: the Treaty of Amsterdam Less than three years after the entry into force of the Treaty of Maastricht, the member states signed the next major amending Treaty –​the Amsterdam Treaty.36 Negotiations leading to this accord once again addressed the role of national parliaments, focusing on (a) the creation of some form of European platform for the scrutiny role of national parliaments and (b) the question of interparliamentary cooperation.37 The negotiations on the Amsterdam Treaty attracted more interest from member state parliaments and higher expectations.38 Agreement resulted on an instrument which had binding legal force, unlike the Maastricht Declarations. The Final Act of the Amsterdam Treaty also adopted Protocol (No. 13) on the Role of National Parliaments in the European Union. (Protocols have exactly the same legal force as Treaty provisions.)39 The Protocol40 “[contained], on the one hand, rules to facilitate the indirect participation of national parliaments in Community affairs, articulating mechanisms of information for them. On the other hand, it [confirmed] COSAC as a mechanism for their direct or collective participation.”41 It was divided into two Titles, one relating to information which national parliaments were to be provided with, the other pertaining to COSAC.42 Title I  (styled “Information for National Parliaments of Member States”) provided: 1. All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States. 2. Commission proposals for legislation as defined by the Council in accordance with Article 151(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate. 3. A six-​week period shall elapse between a legislative proposal or a proposal for a measure to be adopted underTitleVI of theTreaty on European Union being made available

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in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision either for the adoption of an act or for adoption of a common position pursuant to Article 189b or 189c of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position.

These provisions were inherently limited. First, their focus on indirect participation by national parliaments at European level impliedly accepted that there should be no direct role for national parliaments. Secondly,Title I merely facilitated rather than required even an indirect role, doing this via information transmission obligations and the requirement of delays before legislative proposals could be placed on the Council agenda, rather than compelling governments to engage in meaningful discussions with their parliaments.Thirdly, the Protocol wording43 carefully avoided imposing an obligation on member state governments (or anyone else, for that matter) even to carry out the most basic task of transmitting proposals to national parliaments. Fourthly, the Protocol’s conception of the range of legislative proposals which had to be made available in good time so as to facilitate their transmission was narrow. It implicitly excluded many measures, e.g., CFSP measures, documents relating to enhanced cooperation, documents prepared for the Council by member states, and Schengen-​related material.44 As regards Title II of Protocol No. 13 –​styled “The Conference of European Affairs Committees”  –​it gave COSAC Treaty-​level recognition for the first time.45 According to Title II: 4. The Conference of European Affairs Committees, hereinafter referred to as COSAC, established in Paris on 16–​17 November 1989, may make any contribution it deems appropriate for the attention of the institutions of the EU, in particular on the basis of draft legal texts which representatives of governments of the Member States may decide by common accord to forward to it, in view of the nature of their subject matter. 5. COSAC may examine any legislative proposal or initiative in relation to the establishment of an area of freedom, security and justice which might have a direct bearing on the rights and freedoms of individuals. The European Parliament, the Council and the Commission shall be informed of any contribution made by COSAC under this point. 6. COSAC may address to the European Parliament, the Council and the Commission any contribution which it deems appropriate on the legislative activities of the Union, notably in relation to the application of the principle of subsidiarity, the area of freedom, security and justice as well as questions regarding fundamental rights. 7. Contributions made by COSAC shall in no way bind national parliaments or prejudge their position.

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These provisions were the outcome of earlier proposals by France, the UK and Denmark, and earlier conclusions of the October 1996 Dublin COSAC.46 They marked the culmination of a long-​standing earlier debate, led by France and other intergovernmentally-​minded states, concerning the possible institutionalisation at European level of a second chamber composed of national parliamentarians or, at the very least, the institutionalisation of COSAC.47 The fear among other member states that such proposals would undermine the European Parliament, threaten the institutional balance of the Union and distort its democratic foundations, however, led to the failure of these ambitions for a second chamber or for a radically strengthened COSAC. The highly circumscribed provisions of Title II proved to be as far as the member states were prepared to go. Member states would forward draft legal texts to COSAC only “by common accord”. COSAC’s right to examine justice and home affairs initiatives was restricted to proposals “which might have a direct bearing on the rights and freedoms of individuals”, and COSAC contributions were in no way to bind national parliaments. The weak nature of these provisions was unsurprising. (The Amsterdam impulse for EU democratisation found a more effective outlet in the extension of co-​decision.) Empowering COSAC would always have been deeply problematic. First, the power of national delegations to represent the views of their respective parliaments varied considerably. Secondly, a body comprised of MPs from national parliamentary EU affairs committees, would not have sufficient expertise to handle more sectoral issues such as justice and home affairs.48 Subsequent to Amsterdam, COSAC proved unable to take much advantage of the provisions of the Protocol (which turned out to be the high water mark in Treaty provisions concerning this body). Rather than becoming a locus for activities of the kind envisaged in Title II of the Protocol, COSAC instead remained largely a forum for the exchange of information and best practice.49 The Amsterdam IGC fell far short of meeting the high expectations of advocates of an increased role for national parliaments. However it did clarify that enhancing the  European Parliament’s powers would no longer suffice as the near-​exclusive focus of tackling the EU’s democratic deficit.

The prospect of change: the Treaty of Nice Agreement on the Amsterdam Treaty was followed, within a few short years, by that on the Nice Treaty, which entered into force in 2003.50 This Treaty focused intensely on institutional reform prior to the then forthcoming enlargement of the EU to incorporate the Central and Eastern European states, plus Cyprus and Malta. It made no provisions in relation to national parliaments.

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In fact, an attempt had been made at the Nice conference to improve the Amsterdam Protocol. The COSAC meeting held in 2000, during the French Presidency, had already put forward clear proposals on how exactly this could be done,51 but the idea of amending the Amsterdam Protocol fell victim to the unwillingness of member states to raise yet another institutional issue at the final, already fractious, December 2000 meeting of the Nice IGC. As a result, France and Belgium –​the prime advocates at Nice of amending the Amsterdam Protocol –​compromised, settling for the diplomatic equivalent of a post-​dated cheque in the form of a Declaration instead.52 The Final Act of the Nice IGC conference saw the adoption of Declaration (No. 23) on the Future of the Union –​the starting point of a major change in how the EU dealt with national parliaments.The Declaration on the Future of the Union called for a deeper and wider debate about the EU’s future. It anticipated a process of wide-​ranging discussions with, inter alia, representatives of national parliaments,53 with the European Council, meeting at Laeken in December 2001 to agree a declaration containing appropriate initiatives for the continuation of this process.54 Further, Paragraph 5 of Declaration No. 23 noted: 5. The process should address, inter alia, the following questions: –​ how to establish and monitor a more precise delimitation of powers between the European Union and the Member States, reflecting the principle of subsidiarity; –​ the role of national parliaments in the European architecture.

A new IGC was to be convened in 2004 to address these issues, among others, with a view to corresponding Treaty changes.55 Although admittedly followed by another paragraph which concerned issues of democracy in a more general way,56 Paragraph 5 involved a narrowing of a debate which might otherwise have been usefully extended to cover the nature of parliamentary democracy in the EU. The focus on national parliaments reflected the concentration, by German Foreign Minister Joschka Fischer, French President Jacques Chirac and British Premier Tony Blair in their printemps constitutionnel speeches, on finding a role for national parliaments in the European order. These speeches had little effect on the Nice Treaty itself, but they certainly shaped the post-​Nice agenda.57 The end result of all of this was twofold. First, two topics concerning national parliaments had been placed at the centre of a vast debate about to take place regarding the future of the EU and in relation to which an IGC was to take place in 2004.58 Secondly, national parliaments themselves were now to have a role in that same debate.

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A decisive moment: the drafting by the Convention on the Future of Europe of the Treaty Establishing a Constitution for Europe The results of the Convention: an enduring settlement The deliberations of the Convention on the Future of Europe constituted a “decisive moment… when a deep and serious discussion about the role of national parliaments in the Union took place”.59 The Convention produced a draft Treaty Establishing a Constitution for Europe (or “Constitutional Treaty”) enhancing the role of national parliaments in many respects. The final version of this document (agreed upon in the subsequent 2003/​2004 IGC)60 maintained the substance of the Convention’s proposals concerning national parliaments. The Constitutional Treaty was signed at Rome in 2004 but never entered into force, its ratification process halting after referendum defeats in France and the Netherlands in May and June 2005. After a period of reflection, the member states declared themselves in the legally non-​binding Berlin declaration of March 2007,61 to be “united in [their] aim of placing the EU on a renewed common basis” within a short period of time. A  short IGC began in July 2007, with a detailed agreed mandate,62 and the signing of the Lisbon Treaty by the member states followed on 13 December 2007. This document was shorn of the constitutional trappings of the Constitutional Treaty, and unlike the Constitutional Treaty, amended rather than replaced the existing Treaties. However, in substance, it retained the bulk of the Constitutional Treaty’s provisions, including all of those relating to national parliaments, indeed enhancing these latter proposals in the light of the painful evidence of voter alienation which had been provided by the French and Dutch referendums. The Lisbon Treaty entered into force on 1 December 2009, after a difficult ratification process, requiring two referendums in Ireland. Since all of what was agreed in the Convention on the Future of Europe on national parliaments ultimately made it into the Treaty of Lisbon, it seems worthwhile focusing briefly on the Convention.

The Constitutional Convention From Nice to Laeken to the Constitutional Convention

As we have seen, Declaration No. 23 on the Future of the Union –​annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Nice in 2001 –​had already referred to the need to address “the role of national parliaments in the European architecture”63 and had promised the encouragement of “wide-​ ranging discussions” with “representatives of national parliaments” in the process.64

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The December 2001 Laeken Declaration on the Future of the European Union65 went into much more detail. Under the heading “More democracy, transparency and efficiency in the European Union”, it noted that “the national parliaments… contribute towards the legitimacy of the European project”. It recalled that the Nice Declaration had “stressed the need to examine their role in European integration”. It then posed a series of questions concerning the democratic legitimacy of the Union. Regarding national parliaments, it asked: should they be represented in a new institution, alongside the Council and the European Parliament? Should they have a role in areas of European action in which the European Parliament has no competence? Should they focus on the division of competence between Union and Member States, for example through preliminary checking of compliance with the principle of subsidiarity?

The Laeken Declaration also announced the European Council’s decision to convene a Convention on the future of the Union, chaired by former French President Valery Giscard d’Estaing. Beyond Giscard d’Estaing and two Vice-​Chairmen,66 the Convention would be composed of “15 representatives of the Heads of State or Government of the Member States (one from each Member State), 30 members of national parliaments (two from each Member State), 16 members of the European Parliament and two Commission representatives”. Representatives of national parliaments thus constituted by far the biggest bloc in the Convention, contributing close to half its membership (thirty members out of sixty-​six). Indeed, the influence of national parliaments went further than this, as they contributed two out of twelve members of its steering body, the Praesidium, (one of them the former Irish Taoiseach, John Bruton).67 The Convention, the Chairman of which frequently compared it to the 1787 Philadelphia Convention which drafted the US Constitution,68 was established in December 2001, met for the first time in February 2002, and concluded its work in July 2003, producing a draft Treaty establishing a Constitution for Europe. Remarkably, the Convention was not the first occasion national parliamentarians had been involved in European-​level Treaty drafting. After the 1952 signing of the Treaty establishing the European Defence Community, the foreign ministers of the six member states of the European Coal and Steel Community requested that the Common Assembly69  –​at this time composed of national parliamentarians  –​draw up a draft Treaty establishing a European Political Community. It duly did this, although the debacle of the European Defence Community Treaty’s non-​ratification by the French Assemblée Nationale meant that this even more ambitious document was fated never to be signed, much less ratified.

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The 2001–​03 Convention on the Future of Europe was not even the first use of a Convention in a EU context. This honour belonged to the 1999–​2000 Convention, which drafted the Charter of Fundamental Rights on the EU.70 Thirty of the seventy-​one members of the Convention that drafted this hugely significant document were representatives of national parliaments. As was the case in the later Convention on the Future of Europe, national parliamentarians constituted, by far, the largest bloc in that particular Convention.71 Conventions involving participation by national parliamentarians are to become a permanent feature in the existence of the EU, since Article 48(3) TEU (as amended at Lisbon) now makes express provision for the normal involvement of a Convention in the process of Treaty amendment which is to be composed, inter alia, of representatives of the national Parliaments. The Convention on the Future of Europe: two Working Groups dealing with national parliaments

Of six Working Groups set up during the Convention on the Future of Europe to focus on particular issues in more detail, one (Group IV) dealt specifically with the role of national parliaments. However, most of the report of another Working Group also concerned national parliaments: Working Group I, chaired by Spanish MEP Íñigo Méndez de Vigo, dealt with subsidiarity72 and –​in a conclusion with which Group IV agreed –​saw a key role for national parliaments in enforcing this principle.73 The proposals Group I made in its final report bear a very strong resemblance to the provisions of Lisbon Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality, which have subsequently entered into force. Working Group IV (chaired by British MP Gisela Stuart) produced, as expected, a more general report. It probably did not maximise its impact, as it focused on the three topics of “the role of national parliaments in scrutinising governments (national scrutiny systems)”, “the role of national parliaments in monitoring the application of the principle of subsidiarity” and “the role and function of multilateral networks or mechanisms involving national parliaments at the European level”.74 The first topic was always likely to, and ultimately did, remain largely a question under national control, as did a large part of the third topic. The second was dealt with comprehensively by Working Group I. Working Group IV’s report had sections on “general observations and recommendations on the role of national parliaments in the EU”,75 “national scrutiny systems”,76 “subsidiarity”77 and, finally, “multilateral networks or mechanisms involving national parliaments at the European level”.78 As regards the first, the Working Group made three recommendations. First, that

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the future Constitutional Treaty should contain specific wording that acknowledges the importance of the active involvement of national parliaments in the activities of the European Union, in particular by ensuring the scrutiny of governments’ action in the Council, including the monitoring of the respect of the principles of subsidiarity and proportionality.

Secondly, the Working Group recommended that “the Council should act in public in all cases where it exercises its legislative functions. Policy coordination as well as other activities should also be carried out with open doors as much as possible. Clear reasons should be given when closed sessions were deemed necessary.” Finally, the Working Group also recommended that “records of [Council] proceedings should be sent within 10 days to the European Parliament and the national parliaments, parallel to the transmission to governments”. The first recommendation was of largely symbolic significance. The second represented the codification of a change that had already taken place in practice. Both would survive into the Lisbon Treaty.79 The third survived only in watered-​ down form  –​in a Protocol provision that the minutes of meetings where the Council is deliberating on draft legislative acts be forwarded directly to national Parliaments at the same time as to member state governments.80 This proposal was adopted in effectively identical form at Lisbon.81 Working Group IV’s recommendations on “national scrutiny systems” were quite conservative  –​unsurprisingly, given sensitivities in some member states regarding the imposition of EU requirements on national legislatures. It advocated that an amended version of the Amsterdam Treaty Protocol on the role of national parliaments in the EU should include provisions stating that: –​ The Amsterdam Treaty Protocol on the role of national parliaments should be strictly observed, including the six-​week period, with exceptions on the grounds of urgency as set out in the Protocol. –​ Council Working Groups and Coreper should not acknowledge preliminary agreements on proposals covered by the six-​week period of the Amsterdam Treaty Protocol on national parliaments until the end of that period, with exceptions on the grounds of urgency as set out in the Protocol. –​ Parliamentary scrutiny reserves should be given a clearer status within the Council’s rules of procedure. Such reserves should furthermore have a specified time limit, so as not to unnecessarily block the decision procedure. –​ The Council’s rules of procedure provide for a clear week to elapse between a legislative item being considered at Coreper and the Council. The Council Secretariat should henceforth keep and publish a record of the observance of the rule.

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–​ The Commission should transmit all legislative proposals and consultative documents simultaneously to national parliaments, the European Parliament and the Council. –​ The Commission should transmit the Annual Policy Strategy and annual legislative and work programme simultaneously to national parliaments, the European Parliament and, the Council. –​ The Court of Auditors should transmit its annual report simultaneously to national parliaments, the European Parliament and the Council.

The first recommendation was duly implemented, albeit with the six-​week period being extended at Lisbon to a more generous eight weeks.82 Only a watered-​ down version of the second recommendation was ultimately adopted. It focused on temporarily blocking the placing of a draft measure (with a view to its adoption) on a provisional agenda for the Council rather than the much stricter standard suggested by the Working Group (which would have entailed the temporary blocking of Council Working Groups and COREPER from acknowledging preliminary agreements). No Treaty or Protocol change resulted from the third and fourth recommendations, either –​even in the Convention’s own draft Treaty –​ although the fifth, sixth and seventh recommendations were implemented.83 As regards “subsidiarity”, Working Group IV effectively deferred to Working Group I, recommending (in contrast to the latter Group’s far more explicit recommendations) merely that a mechanism should be set up to allow national parliaments to convey early on in the legislative process their views on the compliance of a legislative proposal with the principle of subsidiarity. Such a mechanism should be process-​based and it should not hinder or delay the legislative process.

Finally, as regards “multilateral networks or mechanisms involving national parliaments at the European level”, Working Group IV made a number of recommendations: –​ The method of a Convention should be formalised in a future Constitutional Treaty, as a preparatory mechanism for future Treaty changes. –​ The mandate of COSAC should be clarified to strengthen its role as an interparliamentary mechanism. It could usefully act as a platform for a regular exchange of information and best practices, not only between European Affairs Committees, but also between sectoral standing committees. It should become a stronger network for exchange between parliaments. –​ The Convention should explore further whether there is scope for creating a forum for a debate on the larger political orientations and strategy of the Union,

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involving both national parliaments and the European Parliament. In this context the Group took note of the idea of a Congress and considered that this should be the subject of further examination in the Convention. –​ Interparliamentary conferences on specific issues could be convened as the need arises. –​ A European week should be organised each year to create a common window for EU-​wide debates on European issues in every Member State.

This was a relatively weak set of recommendations. The third recommendation was no more than a renvoi back to the Convention and, of the five recommendations, only the first expressly anticipated Treaty change (a change subsequently accepted by the Convention and ultimately given effect to by the Lisbon Treaty).84 The second and fourth recommendations would also yield fruit in the form of primary law. Interparliamentary cooperation was to be made the subject of a specific Protocol Title,85 with a specific Article clearly setting out a role for a conference matching COSAC’s description (meeting the second Working Group IV recommendation), and including the idea that the conference should “promote the exchange of information and best practice between national Parliaments and the European Parliament, including their special committees”.86 Further, corresponding to the Working Group’s fourth recommendation, it was stipulated that this conference might also “organise interparliamentary conferences on specific topics”.87 Even if many of Working Group IV’s recommendations were ultimately implemented, what seems most striking about its report is its surprising lack of ambition. Part of the problem may have been that the Working Group chose to focus much of its discussion on areas which it was clear that the Constitutional Treaty would either not deal with or, where it did, would defer to national laws and practices. Beyond the Working Groups: the broader Convention

The broader Convention ultimately proposed reforms going beyond Working Group IV’s recommendations, envisaging a role for national parliaments in justice and home affairs,88 a role for national parliaments in accelerated Treaty amendment procedures89 and in procedures for accession of new states to the Union.90 Even in matters basically covered by Working Group IV’s proposals, the Convention chose, in certain respects, to go further than Working Group IV. Hence, the final Convention proposals in the draft Constitutional Treaty included the stipulation that a ten-​day period elapse between the placing of a draft legislative act on the provisional agenda for the Council and the adoption of a position91 –​an idea nowhere to be found in the Working Group recommendations.

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The Convention’s draft Constitutional Treaty also included a greater role for national parliaments in the Treaty revision process than anticipated by Working Group IV.92 It also adopted the parliamentary subsidiarity review mechanism proposed by Working Group I.93 If more ambitious than Working Group IV, the Convention nonetheless did not depart too radically from its proposals. Despite the pre-​Convention focus on national parliaments, the opportunity given to national parliaments to express their views in the Convention, and the facilitation of discussion of their role, the Convention itself was ultimately quite conservative in terms of what it was prepared to propose regarding national parliaments. Members of the Convention generally demonstrated little interest in major parliamentary deficits concerning the common foreign and security policy, the European security and defence policy, enhanced cooperation, and the open method of co-​ordination.94 Little came in the Convention of a range of proposals which would have involved national parliaments in the appointment process of persons in EU leadership positions, such as that of President of the Commission.95 Finally, the Convention was surprisingly restrained in terms of requiring the involvement of national parliaments in forming the policy agenda prior to the proposal of legislation.96 The Convention’s conservatism contrasted with the many ideas which have been considered for national parliaments in the years since the coming into force of the Amsterdam Protocol. The Convention did not propose the creation of any new bodies (although it did propose the formalising of the Convention method). It did not propose the further institutionalisation of COSAC.97 Nor did it accept the proposed resurrection of the Assizes. The Convention Chairman’s support for this proposal undoubtedly contributed to its re-​emergence in the Convention’s “preliminary draft constitutional treaty” of 28 October 2002,98 but the idea went no further. The idea of adding an extra Chamber to the European Parliament in which national parliaments would be represented99 went nowhere in the Convention. The idea, advocated by then German Foreign Minister Joschka Fischer in a speech in Berlin’s Humboldt University in May 2000,100 and by Tony Blair in a speech to the Polish Stock Exchange in November 2000,101 echoed earlier suggestions that had failed to win acceptance at the 1996–​97 IGC in Amsterdam.102 The idea had attracted criticism for foreseeably adding to the complexity of the EU’s institutional architecture by adding a body whose legitimacy would be deliberately rooted in a nationally-​oriented selection procedure.103 Even the idea of conferring only a limited role on the second chamber –​e.g., policing subsidiarity,104 or controlling the CFSP or ESDP –​failed to gain acceptance in the Convention. So did the idea that national parliamentarians represent member states in Council meetings.105

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After the Convention: from the 2003–​04 Intergovernmental Conference to the Constitutional Treaty

All the reforms concerning national parliaments proposed by the Convention in its July 2003 draft Constitutional Treaty survived that document’s transformation into its final form in the 2003–​04 IGC. The IGC added an accelerated procedure for amending, via European Council decision, the Treaty’s provisions on EU internal policies and legislative processes, but it was carefully provided that any such amending decision would not enter into force until “approved by the Member States in accordance with their respective constitutional requirements”. In substance, this provision retained the traditional veto role of national parliaments regarding such Treaty amendments. After all this work, the May and June 2005 referendum defeats in France and the Netherlands then effectively killed the Constitutional Treaty. A resurrection was at hand, however.  Effectively identical proposals to the Constitutional Treaty’s provisions on national parliaments would be included in  the Lisbon Treaty. Indeed, the Constitutional Treaty reforms concerning national parliaments –​probably the least controversial aspects of that document –​were actually expanded upon at Lisbon.

Where we are now: the Lisbon Treaty On 25 March 2007, the member states signed the Berlin Declaration, marking the fiftieth anniversary of the Treaty of Rome and proclaiming that the member states were united in their “aim of placing the European Union on a renewed common basis” by mid-​2009.106 These were no idle words. A mandate was drawn up in June 2007 for an IGC which would agree the text of the Lisbon Treaty.107 The mandate specifically anticipated modifications to the Constitutional Treaty’s innovations so as to provide for an enhanced role for national parliaments.108 More time to reflect on European legislation, a reinforced control mechanism for national parliaments (to enable them to better police observance of subsidiarity by the European legislature), and a new general Article reflecting the role of national parliaments were all specifically required of the new Treaty by the mandate.109 The Treaty of Lisbon was quickly negotiated, signed at Lisbon on 13 December 2007, and  –​after a turbulent ratification process  –​finally entered into force somewhat later than originally anticipated, on 1 December 2009. The already agreed-​upon Constitutional Treaty reforms were seasoned with additional new changes. The Lisbon Treaty saw the emergence of a more multi-​dimensional role for national parliaments than had ever heretofore existed, and which the remainder of this chapter will examine.

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The new general article A general provision on representative democracy had already been included in the Constitutional Treaty.110 This provision –​in part a response to Working Group IV’s call in the Convention on the Future of Europe for clear recognition of the role of national parliaments111  –​survived the coming into force of the Treaty of Lisbon and now takes the form of Article 10 TEU, which provides that: 1. The functioning of the Union shall be founded on representative democracy. 2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens…112

This constituted explicit recognition for the first time of an EU role for national parliaments –​holding national Government ministers to account for their decisions in Council –​which, however important, had always been assumed rather than acknowledged at Treaty level.113 After the 2005 referendum rejections of the Constitutional Treaty in France and the Netherlands, however, the above acknowledgment –​then found in the doomed Constitutional Treaty –​came to be regarded as insufficient. Hence, among the changes envisaged by the June 2007 Brussels European Council when it contemplated the effective resurrection of much of the Constitutional Treaty in the form of the Lisbon Treaty was a further new general Article reflecting the role of the national parliaments.114 This became what is now Article 12 TEU. It provides that national Parliaments contribute actively to the good functioning of the Union: (a) through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the EU; (b) by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality; (c) by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area, in accordance with Article 70 of the TFEU, and through being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Articles 88 and 85 of that Treaty; (d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty;

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(e) by being notified of applications for accession to the Union, in accordance with Article 49 of this Treaty; (f) by taking part in the inter-​ parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.

A number of observations can be made. First, together with Article 10, Article 12 constitutes the first explicit general recognition of the role of national parliaments in European law. Second, Article 12 is the first recognition in the body of a Treaty of the multi-​faceted role of national parliaments. By placing such an article in the TEU itself, the member states “clearly expressed their political will to enhance the position of national parliaments in the European Union”.115 Third, and less sanguinely, Article 12 appears declaratory in nature, adding nothing, in express terms, to the rights of national parliaments provided for elsewhere in Protocols annexed to the Treaties (or envisaged in the Constitutional Treaty) –​ although it might be unwise to rule out the eventual possible intervention of the European Court of Justice in this regard.116 The wording also marks a climb-​ down. As already noted, the original draft provided that “national parliaments shall contribute actively to the good functioning of the Union”.117 This collided with the sensibilities of British MPs, however, the House of Commons Scrutiny Committee arguing this should be a matter of discretion rather than a legal obligation (for which one can probably read EU law obligation).118 Article 12 was duly altered and other Treaty provisions concerning national parliaments use similarly muted descriptive terminology.119 Fourthly, Article 12 does not even mention all Treaty provisions concerning national parliaments. It is best viewed as an attempt to upgrade the visibility of national parliaments in the Treaties –​but an attempt made too hastily, too carelessly and thus not exhaustively.120

The Lisbon Protocols National parliaments are “the object of a series of provisions characterised neither by their clarity nor the elegance of their presentation”.121 Rather peculiarly they are now the subject of two separate but overlapping protocols, both adopted at Lisbon, a situation which owes more to historical accident than logic. Two protocols dealing with a similar subject matter were adopted at the time of the 1997 Amsterdam Treaty.122 It was decided during the debates of the Convention on the Future of Europe –​which had separate working groups on the role of national parliaments and subsidiarity123 –​to stay with this arrangement. The idea of inserting a major role for national parliaments in the subsidiarity protocol also emerged from the Convention, but the sensible idea of putting all of these

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provisions in one single, coherent protocol unfortunately prevailed neither at the Convention nor afterwards.124

The role of national parliaments under Protocol No. 1 on the Role of National Parliaments in the European Union Introduction

Protocol (No. 1) on the Role of National Parliaments in the European Union was annexed at Lisbon to the TEU, to the TFEU, and to the Euratom Treaty. Other than by extending by two weeks the period allowed to national parliaments for consideration of draft laws, the Protocol reproduces, effectively verbatim, the provisions of the similarly-​titled Protocol annexed to the Constitutional Treaty (which never entered into force). Like the earlier Amsterdam Protocol on the Role of National Parliaments in the European Union, Protocol No. 1 is divided into two Titles.Title I is entitled “information for national parliaments” (although where a parliamentary system is not unicameral, all of Title I’s provisions apply to the component chambers of the parliament rather than to the parliament as a whole).125 Title II is styled “interparliamentary cooperation”. The information to be supplied to national parliaments

Information is the lifeblood of any process of parliamentary accountability or scrutiny, and the Protocol provisions ensure national parliaments are supplied with it directly, thereby lessening their dependence on the whim of national executives. Article 12 TEU provides that national parliaments contribute actively to the good functioning of the Union, inter alia, “through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the European Union”.126 Title I  of the Protocol requires national parliaments to be provided with three broad categories of document: draft legislative acts, documents in some way related to draft legislative acts, and other documents. Draft legislative acts

Draft legislative acts sent to the European Parliament and the Council are to be forwarded to national Parliaments.127 The notion of “draft legislative acts” is new.128 Article 2 of the Protocol gives it an extensive meaning, comprising Commission proposals, initiatives from a group of Member States, European Parliament initiatives, Court of Justice requests, European Central Bank recommendations, and European Investment Bank requests for the adoption of a legislative act.129

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This expands considerably on the approach adopted in the 1999 Amsterdam Protocol which deemed draft laws merely to refer to Commission proposals.130 However, gaps still exist. The European Council –​which benefited from a major increase in power and influence at Lisbon –​is not obliged to send any of its many proposals or initiatives to national parliaments since the European Council is not deemed to exercise legislative functions.131 Indeed, it is not even mentioned in the Protocol. Another major innovation of the new Protocol is the direct relationship it envisages between European institutions and national parliaments. The Amsterdam Protocol merely provided for Commission legislative proposals to be “made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate”.132 This left the choice and task of transmission to national governments. Any lack of diligence on their part could thus result in a delay which might, in itself, be enough to prevent national parliaments from intervening effectively. The Lisbon Protocol bypassed this potentially disruptive intervention by stipulating in each case that an EU institution is to be responsible for forwarding draft legislative acts to national parliaments.133 Thus, for the first time, national parliaments and European institutions are made partners in a legal relationship. Under Article 2, draft legislative acts originating from the Commission shall be forwarded to national Parliaments directly by the Commission, at the same time as to the European Parliament and the Council. Draft legislative acts originating from the European Parliament shall be forwarded to national Parliaments directly by the European Parliament. Draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank shall be forwarded to national Parliaments by the Council.

In practice, the Commission sends all its draft legislative acts (and its consultation documents, discussed below) to national parliaments electronically, at the same time as they are sent to the European Parliament and/​or the Council.134 Different language versions135 are sent successively and according to their availability.136 The forwarding of these legislative acts is linked to the possibility of sending reasoned opinions under Article 3 of Protocol No. 1, National Parliaments may send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion on whether a draft legislative act

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complies with the principle of subsidiarity, in accordance with the procedure laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

This overlaps curiously with Article 6 of Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality. Indeed, there is a mild contradiction. Article 6 of the latter Protocol does not envisage reasoned opinions on whether draft legislative acts comply with the principle of subsidiarity (unlike Article 3 of Protocol No. 1) –​merely reasoned opinions stating why the national parliament or chamber concerned considers that the draft in question does not comply with the principle of subsidiarity. Article 6 of the Protocol avoids any danger of reasoned opinions going astray by carefully stipulating that, “if a draft legislative act originates from a group of member states, the President of the Council shall forward the reasoned opinion(s) to the governments of those Member States.” Furthermore, if it originates from the Court of Justice, the European Central Bank or the European Investment Bank, “the President of the Council shall forward the reasoned opinion or opinions to the institution or body concerned.” The provision made for an eight-​week hiatus in Protocol No. 1 also merits mention. Having provided for forwarding directly draft laws to national parliaments,137 and for the reasoned opinions by national parliaments,138 Protocol No. 1 seeks to ensure the effectiveness of these provisions by requiring –​at least as a general rule –​an eight-​week delay between a draft legislative act being made available to national parliaments in the official languages of the Union and the date when it is placed on a provisional Council agenda for adoption or for adoption of a position under a legislative procedure.139 Exceptions are permitted in cases of urgency, although the reasons must be stated in the act or position memo of the Council. It is forbidden even to reach agreement on a draft legislative act during those eight weeks –​although, again, an exception is made: here, for “urgent cases for which due reasons have been given”.140 Who exactly this rule binds is unclear. The relevant article of the Protocol141 is more or less exclusively concerned with the Council. Passos, however, has queried whether it applies to the European Parliament and has speculated regarding Committees of the Parliament not being permitted to adopt reports relating to legislative proposals during this period of time.142 A further ten-​day period must then elapse between the placing of a draft law on the provisional agenda for the Council and the adoption of a position (with an exception being made for “urgent cases for which due reasons have been given”).143 In practice, this translate into fourteen days rather than ten, as the Council’s own Rules of Procedure require the provisional agenda for

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each meeting to be sent to the other members of the Council, the Commission and national parliaments at least fourteen days before the beginning of the meeting.144 Going by European Court of Justice case-​law regarding consulting the European Parliament,145 violation of the Protocol’s time limits could induce the Court of Justice to deem legislation void for infringement of an essential procedural requirement. National parliaments themselves may not be able to get the Court to establish invalidity since, absent European Court of Justice creativity in this regard, they will lack standing to challenge a measure before the Court.146 However, other legal persons –​including the member state of the parliament in question –​will be able to do so.147 The eight-​week-​plus-​ten-​day minimum hiatus is probably most useful in (a)  facilitating national parliaments’ role in the subsidiarity review process. It also (b) facilitates political dialogue by enabling national parliaments to express their views before EU legislation hardens into near-​final form –​although views expressed such a short time before a draft legislative act is placed on the provisional agenda of the Council seem unlikely to have much impact. The eight-​week hiatus period may assist member state parliaments in (c) their traditional role of exercising oversight over ministers in the Council, thus compensating for the decline in the effectiveness of national parliamentary scrutiny reserves or mandates. These which used to prevent agreement on EU legislation until a national scrutiny reserve had been lifted or agreement on terms matching the relevant mandate had been attained. With the spread of qualified majority voting and the resultant possibility of member states being outvoted, however, they are no longer guaranteed to do so.148 It was concerns expressed regarding the practicability of national parliaments getting anything done within the shorter time limit provided for in the equivalent (defunct) Constitutional Treaty Protocol which led to the change to an “eight-​week period”.149 Adhering even to this lengthened period presents challenges for national parliaments. However, the facilitation of national parliaments clearly has to be balanced with the need for EU legislative efficiency. Related documents

“Related documents” form a second category of documents required to be forwarded directly by EU institutions to national parliaments  –​meaning essentially, the travaux préparatoires to legislation. Hence, the agendas and outcomes of Council meetings –​including the minutes of meetings where the Council is deliberating on draft legislative acts –​are now required by Protocol No. 1 to be forwarded directly to national Parliaments at the same time as they are forwarded to member state governments.150

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More usefully –​since proposals are normally be too advanced to be susceptible to much change when they appear on the Council agenda –​documents from earlier phases of the drafting process are also required to be sent to national parliaments. Commission consultation documents (green and white papers, and communications) must also be forwarded directly to national Parliaments on their publication. The forwarding of these documents to member state parliaments was already required under the Amsterdam Protocol on national parliaments. However, the Commission is now also required to forward the annual legislative programme, as well as “any other instrument of legislative planning or policy” at the same time as it forwards them to the European Parliament and the Council.151 Other documents

Going beyond the old Amsterdam Protocol, certain other documents and information which have nothing to do with the production of legislation, but are of considerable political or constitutional significance, are required to be forwarded to national parliaments under Protocol No. 1. The Court of Auditors is required to forward its annual report to national parliaments –​for informational purposes –​at the same time as it forwards it to the European Parliament and to the Council.152 Where the European Council intends to make use of the simplified revision procedures provided for in the TFEU for shifting to qualified majority votes or co-​decision,153 national Parliaments are to be informed of the European Council initiative at least six months before any decision is adopted.154 Under Protocol No. 1, national parliaments now have a right to information on a considerable scale.155 Protocol No. 1 (like the Amsterdam Protocol) does not set out why. However, its preamble does note the member states’ desire: to encourage greater involvement of national Parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts of the Union as well as on other matters which may be of particular interest to them.156

Such is the scale of material being forwarded to national parliaments that national parliaments require some kind of filtering process, in order to ensure that priority is given by them to the most important legislative acts. Otherwise, “there is a risk of submerging national parliaments in a mass of non-​prioritised information which is incapable of being digested”.157 There are various possibilities. UK-​style filtering by the national executive at the request of the national parliament is one option, or parliament itself can do the sifting. This approach requires the

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involvement of specialist knowledge within parliament, and probably specialised committees.158 Notwithstanding the far greater degree of attention which has been paid to the introduction of the subsidiarity control mechanism (examined below), the Protocol No. 1 information rights can have as great an impact in practice, providing national parliaments with the ability to intervene more effectively in lawmaking and to control the EU-​related activities of their national executive. In contrast, it seems unlikely much can be expected from interventions arriving as late as those provided for in the subsidiarity control mechanism. That much said, Title I of Protocol No. 1 guarantees only that national parliaments will receive information, not that it will be used to improve parliamentary oversight of the executive in EU affairs or parliamentary participation in European lawmaking. To do this, national parliamentary resolve and practice are needed. Title I is no more than an invitation to relevance. It is up to each individual parliament to set up systems, mechanisms and practices to accept that invitation.159 Interparliamentary cooperation

Under Article 12 TEU, national parliaments “contribute actively to the good functioning of the Union… by taking part in the inter-​parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.”160 Title II of Protocol No. 1 provides some details here (copying word-​for-​word Title II of the identically-​styled Protocol annexed to the Constitutional Treaty).161 Its provisions somewhat resemble the similarly-​titled Amsterdam Protocol. This focused expressly on the role of COSAC, however. The Lisbon Protocol is less specific. Article 9 thereof stipulates merely that the European Parliament and national parliaments shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union.162 In fact, interparliamentary cooperation predated the 1999 Protocol by some time. Nor is it confined to COSAC,163 with other notable fora and forms of cooperation including the Conference of Speakers of the Parliaments of the EU, and the Interparliamentary European Union Information Exchange (IPEX).164 Article 10 of Protocol No. 1 specifies three modest roles for this “conference of Parliamentary Committees for Union Affairs”.165 First, such a conference may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission.166 As under the Amsterdam Protocol, however, it is specifically stipulated that contributions from the conference are not to bind national parliaments or prejudge their positions. Secondly, it is provided that a conference of Parliamentary Committees for Union Affairs

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“shall in addition promote the exchange of information and best practice between national Parliaments and the European Parliament, including their special committees”.167 Thirdly, it may also organise interparliamentary conferences on specific topics, in particular to debate matters of common foreign and security policy, including common security and defence policy. The second and third points are new, yet scarcely calculated to bring about much change –​COSAC has been engaging in such activities for years. The mention of the European Parliament in Article 9 of the Protocol is significant. National parliaments can seek to exercise influence in the European policy-​making process through a number of institutions. One of these is the Council. National parliaments can seek to wield influence here by exercising traditional parliamentary oversight over national ministers concerning the positions they adopt in Council. The second route is via the Commission, where national parliaments can seek to exercise influence through the subsidiarity review168 and, potentially more effectively, by engaging in the process of political dialogue with the Commission (the so-​called Barroso initiative).169 The third route is via the European Parliament, which is what Article 9 concerns. The European Parliament has long sought to make itself the privileged interlocutor of national parliaments.170 The relationship has the potential to be mutually beneficial. The European Parliament provides resources which are essential to keep COSAC well-​functioning. It also provides facilities in Brussels for national parliaments’ permanent representatives’ meetings every Monday morning. National parliaments, for their part, provide a possible means of influence for the European Parliament in policy areas –​such as the CFSP –​where its role is weakest. A striking feature about Title II is how little novelty it actually brings to the topic of interparliamentary cooperation. Its lack of ambition probably reflects very divergent ideas among national parliaments in relation to what the scope of such cooperation should be, and the limited role the law plays in supporting and stimulating interparliamentary cooperation. Much of such cooperation –​ whether it involves COSAC, the Conference of Speakers, national parliamentary representatives in Brussels, IPEX or other forms of cooperation –​takes place on a voluntary basis in the absence of much, or indeed sometimes, any formal legal framework.

The role of national parliaments under Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality was annexed at Lisbon to the TEU and to the TFEU.171

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Under Article 5(3) TEU,172 national parliaments “ensure compliance with the principle of subsidiarity in accordance with the procedure set out in the Protocol on the application of the principles of subsidiarity and proportionality”. More particularly, Article 69 TFEU stipulates that national parliaments “ensure that the proposals and legislative initiatives submitted under the relevant Treaty chapters on judicial cooperation in criminal matters and on police cooperation comply with the principle of subsidiarity”, in accordance with the arrangements laid down in the same Protocol. Both these provisions are survivors from the Constitutional Treaty, albeit slightly remodelled into a less imperatively-​worded form.173 Article 12 TEU also provides that national parliaments “contribute actively to the good functioning of the Union… by seeing to it that the principle of subsidiarity is respected” in accordance with the same Protocol’s procedures, which means the Protocol is referred to in three separate Treaty provisions. In all but two respects,174 the Protocol is a substantively verbatim reproduction of an identically-​named Protocol which was annexed to the text of the illfated  Constitutional Treaty.175 It provides a means for national parliaments to intervene directly at European level in order to check for compliance with the principle of subsidiarity. Protocol No. 2 involves a far more radical departure from pre-​Lisbon Treaty law than does Protocol No. 1 (even if its actual impact on the EU’s legislative process remains limited). Protocol No. 2’s title is misleading: its provisions are actually far more concerned with subsidiarity than they are with proportionality.176 The Protocol’s control processes involving national parliaments apply only for the purposes of ensuring compliance with subsidiarity. The Protocol’s requirements regarding proportionality are confined to the stipulations that each EU institution shall ensure constant respect for it,177 that draft legislative acts shall be justified with regard to it and, further, that each such act shall contain a detailed statement making it possible to appraise compliance with it.178 Prior to the Lisbon Treaty, national parliaments’ options in terms of enforcing subsidiarity were limited. They could use only whatever powers were given to them by national law to hold Government ministers to account for their actions at European level. The Amsterdam Protocol additionally stipulated that “COSAC may address to the European Parliament, the Council and the Commission any contribution which it deems appropriate on the legislative activities of the Union, notably in relation to the application of the principle of subsidiarity”. A similarly-​worded stipulation of COSAC’s right to address Parliament, Council and Commission is still to be found in Article 10 of the Lisbon Protocol on the Role of National Parliaments. However, it now comes minus the suggestion that it can be deployed in relation to the application of the subsidiarity principle.179

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Legally, of course, COSAC’s right of address could still be used for this purpose, but the existence of the subsidiarity review mechanism should make this superfluous. The Protocol provisions most relevant to national parliaments involve the following issues. The duty to forward draft legislative acts and amended drafts to national parliaments

Under Article 4 of the subsidiarity Protocol, a number of institutions are required to forward documents to national parliaments.180 The Commission is required to “forward its draft legislative acts and its amended drafts to national Parliaments at the same time as to the Union legislator”.181 In practice, it sends all draft laws to national parliaments electronically, at the same time as they are sent to the European Parliament and/​or the Council.182 The European Parliament is also expressly required to “forward its draft legislative acts and its amended drafts to national Parliaments”.183 The Council must “forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments”.184 Finally, “upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be forwarded by them to national Parliaments”.185 For the purposes of the Protocol, “draft legislative acts” means “proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank, for the adoption of a legislative act”186  –​an identical definition to that contained in Protocol No. 1. A limitation on the scope of the Protocol: the principle of subsidiarity

The scope of the Protocol is limited by the scope of the subsidiarity principle itself. Article 5(3) TEU provides that under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

Hence neither the subsidiarity principle nor the Protocol provisions applying the principle have any application in areas within the EU’s exclusive competence.

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They apply merely to “all draft legislative acts in the field of shared competences”.187 This makes sense, since the subsidiarity issue only arises where there is a choice between undertaking some EU-​level action and taking action at a national level. The reasoned opinion

Under Article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers. If the draft legislative act originates from a group of Member States, the President of the Council shall forward the opinion to the governments of those Member States. If the draft legislative act originates from the Court of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned.

Under Article 6, the opinions of national parliaments are required to be reasoned.Thus, some form of dialogue or, at the very least, communication of views is clearly envisaged, rather than a simple totalling of votes against any particular measure. In practice, opinions from national parliaments on proposals which are subject to the subsidiarity control mechanism are published on the Commission’s website after the eight-​week deadline has expired.188 The Commission has built on these provisions with the development of the extra-​Treaty “political dialogue” process, through which it has sought to engage national parliaments in dialogue concerning all aspects of documents sent to national parliaments, not merely the subsidiarity question. This process operates alongside, and goes beyond, the Treaty-​based subsidiarity control mechanism. To keep clear water between the two processes, the Commission has invited national parliaments “to distinguish in their opinions as far as possible between subsidiarity aspects and comments on the substance of a proposal, and to be as clear as possible as regards their assessment on a proposal’s compliance with the principle of subsidiarity”.189 The period envisaged in Article 7 (although longer than the unfeasibly short six weeks envisaged by the Constitutional Treaty’s Protocol)190 is brief, but in

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practice amounts to more than the eight weeks mentioned. This is because the Commission sends the various language versions of draft legislative acts “successively, according to their availability”191 and the eight-​week limitation period starts running only when the last language version is transmitted.192 Adherence even to this lengthier period requires a high degree of organisation, however. National parliaments are well advised to use the Commission consultation documents they are entitled to receive under Protocol No. 1 for advance notice of subsidiarity issues.193 They can also use information available online, e.g., the Work Programmes of individual Council Presidencies194 or shared between national parliaments’ permanent representatives in Brussels at their regular Monday morning meetings. The yellow card system

Under Article 7(1) of Protocol No. 2, “the European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.”195 Article 7, however, gives more force to the collective opinions of national parliaments than this. Indeed, it sets up two systems for doing so. The first (provided for in rules copied virtually verbatim from the defunct Constitutional Treaty Protocol) is known as the “yellow card” system –​referring to the card used by referees in football matches to warn of misconduct. Article 7(1) stipulates that “each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote.”196 Article 7(2) then stipulates quantitative thresholds triggering a review requirement: “where reasoned opinions on a draft legislative act’s non-​compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments… the draft must be reviewed”. This threshold is reduced to a quarter of the votes allocated where the draft laws have their legal basis in Article 76 TFEU on the area of freedom, security and justice. A generous approach is taken in practice regarding the counting of votes: the Commission has always favoured a political interpretation of opinions received from national Parliaments and will therefore consider all reasoned opinions raising objections as to the conformity of a legislative proposal with the principle of subsidiarity towards the thresholds indicated in the Treaty, even if the different reasoned opinions provide different motivations as to the non-​compliance with the principle of subsidiarity or refer to different provisions of the proposal.197

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The Commission analyses each negative opinion and checks whether or not the threshold has been reached. • As regards initiatives for which the yellow card threshold is reached, once the deadline has expired, the Commission provides a political assessment of the files and confirms the triggering of the subsidiarity control mechanism. National parliaments, the European Parliament, the Council and IPEX are then informed accordingly.198 • Where thresholds are not met after eight weeks or if opinions arrive after the deadline has expired, the Commission replies to the respective national Parliaments in the context of the political dialogue. Article 7(2) then indicates the –​potentially rather modest –​legal impact of the review process, stipulating that “after such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.” The Commission gives reasons for any such decision in the form of a Commission Communication, which is sent to all national Parliaments, as well as to the EU legislator and to IPEX.199 A “yellow card” collective warning triggering the application of Article 7(2) does not prevent the adoption of the proposed legislation: The possibility of the legislation being maintained in the draft is specifically envisaged, even if justification for this (or any other) course of action must be given. The card represents an “obstructive minority” of national parliaments and chambers, rather than a blocking minority. A subsidiarity review system like this is not without its difficulties. It arguably constitutes an invitation to national parliaments to second-​guess positions adopted by ministers in Council, although these normally enjoy the confidence of a majority in their national parliament.200 However, the likelihood that the position of  most national parliaments would normally approach  that of their national representative in the Council was always strong.201 In itself, this is not necessarily a bad thing but the danger of creating false hopes has adhered to the subsidiarity mechanism. National parliaments tried out the subsidiarity early warning system in November 2004 –​when the first COSAC after the signature of the Constitutional Treaty agreed to a pilot review of the Commission’s Third Railway Package so as to permit national parliaments to gain experience. The experience proved useful enough to repeat. COSAC co-​ordinated seven further “subsidiarity checks” by the end of 2009.202

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In May 2012, the Commission’s so-​called “Monti II” Proposal203 became the first-​ever legislative proposal to attract a yellow card, when reasoned opinions representing twelve parliamentary chambers from across the EU were received. The Commission subsequently withdrew an almost universally unpopular (and hence unadoptable) draft law, but did so disputing any subsidiarity breach.204 No real meeting of minds or even rapprochement about subsidiarity between the Commission and member state parliaments occurred. In November 2013, the Commission’s proposal for a Council regulation establishing a European Public Prosecutor’s Office (EPPO)205 collected the second-​ ever yellow card, this time on foot of reasoned opinions representing fourteen parliamentary chambers. Again, the Commission disputed that the draft violated subsidiarity. This time, however, it maintained the proposal, indicating that it would use enhanced cooperation to get it adopted.206 The third –​and to date last –​yellow card was issued on 10 May 2016 when reasoned opinions representing fourteen votes from eleven national parliaments (all bar one from Central and Eastern Europe) were received concerning the Commission’s proposed targeted revision of the Posted Workers Directive.207 Here again, the Commission having reviewed matters, argued that the proposal fully complied with subsidiarity, and declared its intention to maintain it.208 If three yellow cards in almost seven years (and the maintenance by the Commission of two of the three proposals concerned) seems a modest total, this does not mean the yellow card procedure is meaningless, for the usefulness of the procedure may not be best judged by counting the number of cards issued. This point is returned to below.209 The orange card system

An additional paragraph was added to Protocol No. 2 at Lisbon, providing another subsidiarity control.210 This new control, unlike the yellow card procedure, applies only to proposals which involve the co-​decision or “ordinary” legislative procedure.211 The newer system has been referred to as an “orange” card system, with the rather mixed metaphor here being that of a traffic light.212 The “orange card” designation is apt for the further reasons that this idea came from a Dutch parliamentarian and formed part of the response to the Dutch and French referendum votes against the Constitutional Treaty. It produces less than a red card (or red traffic light) in that it is not, on its own, enough to put an end to a legislative procedure. The new rule stipulates that, “where reasoned opinions on the non-​compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national parliaments, then that

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proposal must be reviewed.”213 This does not kill off the proposal. Indeed, “after such review, the Commission may decide to maintain, amend or withdraw the proposal”.214 If it chooses to maintain the proposal, the Commission has to justify, in a reasoned opinion, why it considers that the proposal complies with subsidiarity.215 This requirement might seem to add nothing to similar obligations elsewhere in the Protocol. Indeed, the Commission has indicated that its procedure here will be the same as that deployed in the yellow-​card procedure.216 The obligation means at least that the Commission must respond to any new concerns about subsidiarity expressed by national parliaments.217 However, what comes next is new. The Commission’s reasoned opinion, as well as the reasoned opinions of the national parliaments, must be submitted to the European Parliament and the Council for consideration.218 These institutions are then required –​before concluding the first reading in the co-​decision procedure219 –​to consider whether the legislative proposal is compatible with the principle of subsidiarity.The fulfilment of this role by the European Parliament and the Council under the orange card procedure, is thus made a condition precedent to concluding the first reading in the co-​decision procedure. The failure to fulfil this duty would likely open a measure adopted to challenge before the European Court of Justice on grounds of infringement of an essential procedural requirement.220 In considering the subsidiarity issue, the Council and the European Parliament must take particular account of the reasons expressed and shared by the majority of national parliaments as well as the reasoned opinion of the Commission.221 Crucially, if the opinion of a 55% majority of the members of the Council or a majority of the votes cast in the European Parliament is that the proposal “is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration”.222 In other words, it will be struck from the legislative agenda –​ the first time the subsidiarity-​compliance monitoring system has envisaged the possibility of legislation actually being blocked on the grounds of subsidiarity violation. The limits of this process should be borne in mind. First, a  majority of national parliaments cannot block legislation. This requires the agreement of either Parliament or Council as well. Further, the voting rules imply that the votes of only thirteen of the twenty-​seven states represented in the Council, or a majority of those which happen to be cast in the European Parliament on a given day (not a majority of that Parliament’s members), can save a legislative proposal.223 To date, an orange card –​unlike the yellow card, which, as we have seen, has been flourished three times –​has never been deployed.

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Conclusion on the ex ante subsidiarity control mechanisms More dignified than efficient?

The question may legitimately be put of why the ex ante subsidiarity control mechanisms were created. Their existence may be rooted in the need to respond to criticisms of EU decision-​making processes as lacking in transparency, and the suspicion “that the Union institutions try to increase their powers to the detriment of national parliaments”.224 The latter criticism in particular, however, appears to have little basis in reality.225 The problem seems rather one of perception. The mechanisms are probably better viewed as a response to a need for clarity or the elimination of any misconceptions than a response to any systemic grab for power by European institutions.226 Some confirmation of this can be seen in the evidence given by Andrew Duff, MEP, to the House of Commons European Scrutiny Committee, in which he went so far as to say of the subsidiarity early warning mechanism that it was understood by those of us involved in its drafting and, then, re-​drafting that the mechanism, although a necessary addition to the system of governance of the Union, was not really intended to be used. It is, in Bagehot’s terms, more a dignified part of the European constitutional settlement than an efficient one.227

This does not mean that the subsidiarity control mechanisms are of no value. Their existence may help dissipate fears (however baseless) of a grab for power by EU institutions and, hence, help allay fears and distrust of the EU legislature.228 Kiiver has perceptively pointed out that the early warning system is not about national parliaments’ power to veto legislative initiatives, but rather about the duty of Brussels to explain and justify its legislative initiatives. He argues that increased transparency, accountability and a fostered dialogue across levels of government are goals which would in themselves suffice to justify the creation of the early warning system.229 A second advantage is that the existence of the subsidiarity control mechanisms has led to more debate on European matters, and more “downward” communication of information about them, in national parliaments, enabling national parliaments to become direct interlocutors with the Commission during the legislative process (a phenomenon enhanced by the introduction of the political dialogue). It facilitates discussions of legislation in national parliaments which can range well beyond the confines of subsidiarity. Kiiver contended at an early stage that the early warning system would raise European awareness generally among national parliamentarians, who would then pay more attention to what their own government was doing regarding proposed EU legislation.230 Thirdly, awareness that there is now a system such as this may motivate and stimulate the better equipment and resourcing of national legislatures, thereby

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enabling them to take seriously any role they have to play in relation to the European legislative process. A cross-​European surge in parliamentary interest in subsidiarity and in European issues both preceded and followed the introduction of the early warning system by the Lisbon Treaty, including in Ireland.231 The existence of the mechanism also facilitates the transmission of groundswells of popular opinion in member states against draft laws.232 It is however questionable if it is a good idea to force the square peg of popular opposition to individual measures through the round hole of a procedure focusing on the highly technical legal question of subsidiarity. Some challenges and risks have attended the introduction of the new processes –​in particular, the subsidiarity review procedure. First, the new processes require national parliaments to organise themselves effectively to be able, for example, to provide a reasoned opinion on subsidiarity within the short period of eight weeks. Optimum use of the subsidiarity processes also involves the setting up of institutional arrangements to facilitate effective sharing of expertise between members of national parliaments (and, indeed, presupposes that the requisite degree of expertise is available to national parliaments). Effective use of the procedure also requires networking between national parliaments. The form which the response of the Irish parliament has taken to these challenges is recorded elsewhere in this volume. Secondly, each national parliament must find a happy medium between two dangers: on one hand, the danger that excessive zeal on the part of national parliaments in the discharge of their new responsibilities might block the EU’s legislative process –​and, on the other, the risk of a growth in national parliamentary disillusion or indifference to the whole subsidiarity review process. As regards the former danger, any mechanism which creates the possibility of proposed EU legislation being permanently derailed is obviously of significance and the orange card procedure certainly lends the subsidiarity control mechanism “bite”. However, the Lisbon Treaty drafters also sought to avoid excessive disruption of the legislative process by the careful assignment of crucial roles in the process to Commission, Council and Parliament: the paucity of yellow cards and  non-​deployment of orange cards since the entry into force of the Lisbon Treaty shows that in this aim at least, the drafters were successful. Disillusion or indifference on the part of national parliaments regarding the subsidiarity process is arguably the greater danger given that only three yellow cards have ever  been deployed since the introduction of the mechanism. (Furthermore, it seems unlikely that an orange card will ever be deployed in a situation in which a measure would not be outvoted in any case in the Council. The majority of parliamentary chambers, after all, would normally be expected to support the position of their government and its member in the Council.)

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Such disillusion would be a matter of concern. National parliamentarians need to have sufficient interest in the subsidiarity provisions in order to make them work. Indeed, a central problem to date in securing the involvement of national parliaments in the scrutiny of European legislation has been, as Kiiver has observed, that voters do not seem to reward [work] on European scrutiny. The Commons had… even to reduce the planned number of European Standing Committees from five to three due to a shortage in volunteering MPs. Also in the other national parliaments, the vast majority of incoming EU documents is either left unattended, is immediately cleared as requiring no further scrutiny, or is merely taken note of without debate. The sectoral committees in the French parliament reportedly greet EU documents with a mix of scepticism and boredom. Even in the Nordic mandate-​giving parliaments… the draft mandates are usually approved of in the form proposed by the government.233

The subsidiarity review powers conferred on national parliaments at Lisbon thus have to function in the absence of a great deal of electoral interest in their exercise. How well these powers are capable of functioning in such an environment on an ongoing basis remains to be seen. It may be thus be necessary to increase further the national parliaments’ powers. Of great interest in this respect were the February 2016 European Council conclusions.234 In these a set of arrangements were agreed upon, which would have become effective when the UK informed the Council Secretary-​General that the UK had decided pursuant to the June 2016 Brexit referendum to remain an EU member state.235 These arrangements included a “Decision Of The Heads Of State Or Government, Meeting Within The European Council” to the effect that where reasoned opinions on the non-​compliance of a draft Union legislative act with the principle of subsidiarity, sent within 12 weeks from the transmission of that draft, represent more than 55% of the votes allocated to the national Parliaments, the Council Presidency will include the item on the agenda of the Council for a comprehensive discussion on these opinions and on the consequences to be drawn therefrom. Following such discussion, and while respecting the procedural requirements of the Treaties, the representatives of the Member States acting in their capacity as members of the Council will discontinue the consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions.236

This so-​called “red card” procedure would obviously have constituted a considerable enhancement of national parliamentary rights. It would have resulted in national parliaments collectively becoming veto players regarding EU legislation

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under the rubric of the enforcement of the subsidiarity principle –​even if the conditions linked to the “red card” were so stringent that it might never or only very rarely ever have been invoked. However, the Council conclusions also provided that should the result of the June 2016 referendum in the United Kingdom be for the UK to leave the EU, the agreed set of arrangements (including the red card procedure) would cease to exist.237 This eventuality came to pass: the June 2016 vote was for “Brexit”. The envisaged red card procedure therefore lapsed.238 Such is the degree of consensus concerning the desirability of enhancing national parliamentary rights at EU level, however, that it seems likely that provisions similar to those envisaged by the European Council in February 2016 might well reappear at some future point. For now, however, one is left with the present (Lisbon) arrangements. Under these, the blockage of legislative proposals under Article 7(3) will continue to be highly exceptional and unusual. The collective challenge of securing a sufficient number of the votes which have been assigned to national parliament and chambers to result either in an Article 7(2) yellow card –​let alone an Article 7(3) orange card –​has shown itself to be considerable. This is not necessarily a bad thing. Rendering the blocking of proposals difficult avoids hindering the EU legislative process excessively. And of course, the Commission has to tread carefully in any case, if a proposal it puts forward attracts significant opposition from national parliaments, even if this is not on a scale sufficient to trigger an orange or even a yellow card.239 Political dialogue: the Barroso initiative

Some note should be made of the political contextualisation of the subsidiarity review provisions by the political dialogue process. In 2006, the European Commission, going beyond the rather unambitious provisions concerning national parliaments in an increasingly defunct-​seeming Constitutional Treaty, set up a mechanism for a political dialogue process:  the so-​called Barroso Initiative, named after the then Commission President. This had as its objective putting in place a privileged channel of communication between the Commission and national parliaments. Annual reports on relations between the European Commission and national parliaments have since then been produced by the Commission, detailing the dialogue, contacts and visits between these institutions.240 The 2015 Annual Report on Relations between the European Commission and National Parliaments (the last available at the time of writing) reported that 350 opinions had been sent to the Commission in the context of the political dialogue that year:241 a 31% reduction from the 506 opinions received in 2014. Although the Commission has argued that this fall in the number of opinions received from national parliaments reflects the huge reduction by it in the

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number of new initiatives,242 there is more to matters than this. The fall in the use of the political dialogue process by national parliaments predates this shift in Commission policy and has in fact fallen in all three years since 2012 (when the highest-​ever total of 663 opinions were received),243 having risen every single year before this.244 The political dialogue process is now generating in total only 56% of the number of 2012 opinions from national parliaments. Several reasons seem to be at play. National parliaments appear to have learned over time to economise with their interventions, focusing on non-​legislative proposals, such as communications and green papers rather than individual legislative drafts.245 Whether for this or some other reason, there has been a precipitous fall in the disproportionately high number of opinions sent by Portugal.246 Another braking factor, however, may have been the lack of seriousness which national parliaments perceived their views were being taken by the Commission: the 2015 Report seemed to acknowledge such views (and their accuracy) implicitly by noting a change in Commission behaviour: the Commission departed from its previous practice whereby replies to national Parliaments’ opinions were signed solely by the Vice-​President in charge of interinstitutional relations. Now, replies are co-​signed by the First Vice-​President and either the Vice-​President or Commissioner responsible for the policy area. This underlines the political importance that the Commission attaches to this dialogue. The Commission also took steps in 2015 to improve the manner in which it replies to national Parliaments’ opinions with the aim of reinforcing the political nature of replies while continuing to provide substantive answers to all technical issues raised.247

Increased “mainstreaming” of national parliamentary views and more political engagement by the Commission have been taking place. Whether the fall in national parliamentary involvement can be reversed however remains to be seen. Other problems exist with the dialogue. There is distinct unevenness in levels of national parliamentary engagement. Some chambers have always been far more active than others. In 2015, as the Commission itself noted, “political dialogue activity, measured by the number of opinions sent to the Commission, remained unequally distributed across national Parliaments. The 10 most active chambers accounted for approximately 70% of all opinions, albeit down from 80% in 2014.”248 At the other end of the scale, seven of the forty-​one parliamentary chambers sent no opinions at all in 2015. Sixteen of forty-​one chambers (i.e., 39%) sent no more than two in the entire year.The fact that the latter category included two parliaments famed for their proactive approach to European affairs  –​the Danish Folketing (which sent only two opinions) and the Finnish Eduskunta (which delivered just one) –​and, for that matter, the German Bundestag (which delivered merely two), indicates that while part of the problem may be a failure by certain

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national parliaments to adjust appropriately to EU membership, certain parliaments are choosing to concentrate their EU-​related activities to matters more likely to yield results –​in particular, on ensuring accountability on the part of national governments in EU-​related matters.To this extent, they have given up on the political dialogue. Ireland’s Dáil and Seanad came in joint thirteenth place of the forty-​one chambers in terms of their engagement in the political dialogue, the Commission recording nine opinions as having been sent by them. The political dialogue may possibly ultimately gain some form of Treaty recognition in the event of the Treaties being subjected to a thorough revision. Even should such Treaty change not happen, the process of political dialogue between national parliaments and the Commission will continue.The Commission has for long made it clear that the Treaty-​based subsidiarity review mechanism provided for at Lisbon will continue to be applied side by side with the non-​Treaty based process of political dialogue.249 Yet statistics showing declining national parliamentary engagement since 2012 give cause for concern. A lack of engagement by national parliaments and the Commission’s own failure to take the process adequately seriously may well have done damage to what should be a valuable tool of communication between the two levels of governance.250 Recourse to the European Court of Justice for the annulment procedure

As well as the ex ante system of subsidiarity control, Protocol on the application of the principles of subsidiarity and proportionality also provides for an ex post system of control. Under Article 8 of the Protocol the Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.251

This provision reproduces, effectively verbatim, a similar provision in the equivalent Constitutional Treaty Protocol, and owes its origins to the Constitutional Convention that produced that Treaty’s first draft.Yet it does not embody explicitly either original idea of the Convention’s Subsidiarity Working Group that (a) “recourse to judicial proceedings must be able to occur only in limited and probably exceptional cases, when the political phase has been exhausted without any satisfactory solution being found by the national parliament(s) involved” and that (b) national parliaments themselves should be able to refer questions of the violation of the subsidiarity principle to the European Court of Justice.252 Article 8 does not explicitly state that member state governments are to be bound in European law by a notification from a national parliament or

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parliamentary chamber.253 In Ireland, the matter has become largely moot as Section 7(4) of the European Union Act 2009 now provides that where either House of the Oireachtas is of opinion that an act of an institution of the European Union infringes the principle of subsidiarity provided for in the treaties governing the European Union and wishes that proceedings seeking a review of the act concerned be brought in the Court of Justice of the European Union in accordance with Article 263 of the Treaty on the Functioning of the European Union, it shall so notify the Minister in writing for the purposes of Article 8 of Protocol No. 2 to that treaty and the Treaty on European Union and the Minister shall, as soon as may be after being so notified, arrange for such proceedings to be brought.254

Other states have taken a different approach. In Spain, for example, the Government may reject such a demand, although it must provide reasons and justify its decision before a special commission if requested to do so.255 Thus the subsidiarity control system is not quite as uniform in its application across the EU as it might first appear. A separate route for a parliamentary chamber to bring a challenge to a legal act on subsidiarity grounds makes most sense where the government has no majority in that chamber and thus is most likely to have an independent view.256 Exactly the same point may be made about the ex ante subsidiarity procedure, however. Interesting questions are raised by Article 8. Will, for example, the notification by a parliament or chamber of an action on the grounds of subsidiarity infringement deprive the member state concerned of its right to intervene in a case (possibly supporting the other side)?257 The reaction of certain national legal systems to the Article 8 procedure for recourse to annulment proceedings is of interest. Under German law, the Bundestag (lower House) is obliged to lay proceedings under Article 8, and the Government to refer them to the European Court of Justice, at the request of only a quarter of the Bundestag’s membership.258 Analogously, Article 86–​6 of the French Constitution requires either House of the Assemblée Nationale to bring a challenge (which must then be referred to the Court of Justice by the Government) on the application of only sixty of its members.259 By doing this, these states have turned the Article 8 procedure into something not clearly envisaged when the Article was drafted: a system for the protection of views which are in a clear minority in national parliaments. Parliamentary chambers must cause subsidiarity proceedings to be brought even when the view of a clear majority in the relevant chamber is that there has been no such violation. The inclusion of a major role for national parliaments in the subsidiarity review process seems predicated on, and justified by, the democratic representativity of those institutions, rather than an expectation that national legal systems

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will, in effect, delegate the powers of their national parliamentary chambers to an unrepresentative minority of their membership. Adopted on a more widespread basis, the Franco-​German approach would lead to an increase in the risk of disruption of the legislative process at EU level in a manner hard to justify on the basis of democratic necessity. The European Court of Justice has, to date, declined to invalidate any measures on subsidiarity grounds. But it cannot be guaranteed that it will always take such a conservative approach.260

The role of national parliaments in the Treaty amendment process It is proposed to examine briefly the other roles conferred on the Oireachtas, explicitly or implicitly, by European law as it now stands. The first such role is that of national parliaments’ involvement in the Treaty amendment process. One significant change which came about as a result of the coming into force of the Treaty of Lisbon was the replacement of the provision which set out a single main route for the amendment of the Treaties –​the old Article 48 TEU –​with a veritable four-​lane highway, consisting of the traditional amendment procedure (now, however, enhanced with some additional features) plus three simplified amendment procedures.261 In all of these amendment procedures, national parliaments have a significant role to play. The role of national parliaments in the ordinary revision procedure: an involvement in each of three stages An initial role

National parliaments have always played a role in the creation of what is now EU primary law. This role has been seen in (a) the adoption of constitutive treaties (whether as an original party to any such Treaty262 or by a state adhering to its own accession treaty); (b) the adoption of later treaties amending these Treaties;263 and (c) the adoption by existing member states of treaties providing for the accession of new member states. Since the 2009 entry into force of the Lisbon Treaty, the role of national parliaments in the latter two processes has increased. As regards the process of amendment of existing treaties, Article 48 TEU now provides for a modified form of the old pre-​Lisbon Treaty amendment procedure, now known as the “ordinary revision procedure”. Under Article 48(2) TEU, any Member State government, the European Parliament or the Commission may submit proposals to the Council to amend the Treaties. According to Article 48(2), “these proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified” (presumably also by the Council). This notification guarantees national parliaments the opportunity to be made aware of proposed amendments at the very outset of the process of Treaty revision.

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A Convention role

A second role in the ordinary revision procedure is now also envisaged for national parliaments by Article 48(3) TEU. The innovation consists of a so-​called “convention”, modelled on the 1787 Philadelphia Convention which drafted the US Constitution. The perceived success of employing such a body in a EU context without any Treaty basis in order to provide the initial drafts of the Charter of Fundamental Rights of the European Union and, indeed, the Constitutional Treaty itself264 led the member states –​first, in the unsuccessful Constitutional Treaty265 and then at Lisbon –​to provide that “if the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention”.266 Under Article 48(3), this Convention is to be composed of: the heads of state or government of the member states;267 representatives of the European Parliament and of the Commission; and “representatives of the national Parliaments”.268 The purpose of such a Convention is to “examine the proposals for amendments” and to “adopt by consensus a recommendation to a conference of representatives of the governments of the Member States”.269 The practical importance of such a role can be seen in the large number of amendments proposed by the Convention on the Future of Europe which survived into the final version of the Constitutional Treaty and, ultimately, into the Treaty of Lisbon. Maurer and Wessels have described the convention idea as a move towards assigning national parliaments a share of a kind of “para-​constituent authority”.270 The role of national parliaments to participate at this point of the ordinary Treaty amendment process by having representatives at such a convention is vulnerable, however: “the European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments.”271 This provision was actually invoked the first time this amendment process was deployed.272 A role in the ratification process

Article 48(4) TEU provides for a role for national parliaments in the final part of the ordinary amendment procedure, stipulating that a conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.273

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In Ireland, as in other member states, the process of approval of major EU Treaties normally involves a parliamentary vote (accompanied in Ireland by a referendum), thereby guaranteeing at least some parliamentary involvement in the Treaty amendment process. The changes effected at Lisbon, however, mean that national parliaments have a role not only at the very end of the Treaty amendment process but also, potentially more influentially, at the beginning and (at least normally) in the middle of the ordinary Treaty amendment procedure as well. The role of national parliaments in simplified revision procedures

The Lisbon Treaty provides for three accelerated or simplified procedures for amending the Treaties. A  role has been provided for national parliaments in all three. The first simplified revision procedure

Under Article 48(6) TEU, any Member State Government, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the TFEU. This is a very considerable part of this Treaty, governing the large field of internal policies and actions of the Union –​covering, inter alia, the internal market; agriculture and fisheries; freedom, security and justice; common rules on competition, taxation and approximation of laws; economic and monetary policy and many other policy areas.274 The “simplified” element of this Treaty amendment procedure is the fact that, without an IGC (or indeed a convention) being necessary, the European Council is empowered to adopt a decision amending all or part of the provisions of Part Three by unanimity.275 National parliaments’ input stems from Article 48(6)’s specific provision that such a decision shall not enter into force until approved by the Member States in accordance with their respective constitutional requirements.276 In Ireland, this will sometimes involve parliamentary approval.277 Like the ordinary amendment procedure, therefore, the first simplified revision procedure can involve national parliaments being given a veto power at the end of the amendment process. Unlike the ordinary amendment procedure, however, it involves no more than this. Thus one of the ways in which the amendment procedure is “simplified” is by avoiding the ordinary revision procedure’s obligation to notify national parliaments of proposed amendments with the potential for national level debate this creates. Article 48(6) was deployed for the first time for a Treaty amendment facilitating the creation of the European Stability Mechanism.278

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The second and third simplified revision procedures

A role is also provided for national parliaments under what one might call the second and third simplified revision procedures. According to the second simplified revision procedure, where provision is made either in the TFEU or in Title V TEU (which relates to the EU’s CFSP and to EU external action) for the Council to act by unanimity, the European Council may adopt a decision authorising the Council to act by qualified majority.279 According to the third simplified revision procedure, where provision is made in the TFEU for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts by the ordinary legislative procedure (i.e., co-​decision).280 A power of veto regarding both procedures is reserved for each individual national parliament. Hence, Article 48(7) provides that any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision… shall not be adopted. In the absence of opposition, the European Council may adopt the decision.281

Although technically Treaty-​amending power is transferred from national level to European level in Article 48(7)’s two simplified revision procedures, the effect of these provisions is that each national system is facilitated in retaining a parliamentary veto over the use of the amendment power. In this way, each national system is permitted to recreate the power previously enjoyed by national parliaments through the process of Treaty ratification that normally accompanied Treaty amendments. The invitation by Article 48(7) is facilitative rather than mandatory, however. In other words, Article 48(7) veto Treaty amendments must be accepted by each national system. National parliaments must be enabled to exercise this discretion by the relevant national rules and by national political parties controlling their operation. Absence of national parliamentary opposition for any reason –​including the failure of national legal and political systems to facilitate this –​enables the European Council to take the Treaty-​amending decision. A kind of addendum is provided to the third simplified revision procedure by Article 81(3) of the Treaty on the Functioning on the European Union. Under Article 81(3), the Council, on a proposal from the Commission, “may adopt a decision determining those aspects of family law with cross-​border implications which may be the subject of acts adopted by the ordinary legislative procedure.”282

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Precisely the same powers are reserved for national parliaments under Article 81(3) as under the second and third simplified revision procedures, and raise precisely similar issues. Thus Article 81(3) provides that any such proposal shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.283

Article 81(3) owes its separate existence to historical reasons. It originated in the Treaty of Nice. It has now been aligned, in terms of its effects, with the third simplified revision procedure. However, the deciding body under Article 81(3) is the Council, not the European Council.284 Specialised revision procedures

A number of specialised revision procedures have also survived the coming into force of the Lisbon Treaty, many providing a role for national parliaments. Some of these are analogous to the first simplified revision procedure in that they permit the amending or supplementing of Treaty or Protocol text.285 Only one such specialised revision procedure, however, appears to even implicitly envisage a potential role for national parliaments.This is Article 25 of the TFEU, which provides that the Council may adopt provisions to strengthen or to add to the rights of EU citizens which are listed in Article 20(2).286 The implicit potential role for national parliaments here stems from the stipulation that “these provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements”.287 Similarly, notwithstanding the enactment of Article 48(7) –​with its second and third generalised passerelles –​some specialised passerelles have also survived or originated with the coming into force of the Lisbon Treaty.288 One of these passerelles, Article 81(3) of the TFEU, is so closely linked to the third general passerelle that it has already been examined in that context. As has already been seen, this expressly envisages a veto role for national parliaments. No other specialised passerelle appears to envisage, expressly or implicitly, any role at all for national parliaments. It is, of course, possible that any given national legal system might itself demand a role for its national parliament in relation to any other passerelle or specialised revision procedure  –​something which the German Federal Constitutional Court (the Bundesverfassungsgericht) has demanded in its Lisbon judgment of the German legal system, where treaty amendment is allowed without a ratification procedure.289

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The role of national parliaments regarding applications to join the EU Because of the need to ratify accession treaties (a requirement only now stipulated in Article 49 TEU, but reflecting one which had already existed in public international law), and the wish to incorporate their provisions into national legal systems,​national parliaments have always tended to have a role in relation to the accession of new EU member states. The coming into force of the Treaty of Lisbon has led to national parliaments being given an additional Treaty-​ acknowledged place in relation to accessions, however. Article 49 TEU now provides that any European State which respects the values referred to in Article 2 of that Treaty,290 and which is committed to promoting them, may apply to become a member of the Union. It then further stipulates that both “the European Parliament and national Parliaments shall be notified of this application”.291 Thus, national parliaments are to be made aware of any such application at its outset rather than, as has historically been the case, simply being presented with the take-​it-​or-​leave-​it option of ratifying an accession treaty at the end of already-​concluded negotiations. The ratifying role of national parliaments is also retained, however. In wording taken verbatim from the old Article 49 TEU (i.e. as it stood in its pre-​Lisbon form), it is stipulated that the conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.292

Implicitly, this acknowledges the continued existence of the role which national parliaments have always enjoyed at the end of the accession process.

The role of national parliaments in decisions to withdraw from the EU In a provision introduced by the Lisbon Treaty (and in a rather telling commentary on the perceived locus of sovereignty within the EU), Article 50 TEU provides that any member state may decide to “withdraw from the Union in accordance with its own constitutional requirements”. The normal anticipated procedure is that “the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”.293 No role is stipulated for the national parliament of any other member state in this regard. Instead, Article 50(2) merely

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stipulates that the agreement “shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”. However, in the departing member state, the normal requirement in public international law pertaining to ratification of international treaties, in addition to political reality, would ensure a role for the national parliament concerned.

The role of national parliaments in the operation of the flexibility clause From the beginnings of the EEC, a so-​called “flexibility clause” has empowered the adoption of measures where Treaty objectives are set out, but the necessary powers to attain those objectives are not. Article 352(1) of the TFEU294 –​ the current version provides that if action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures…

Article 352(2) provides for a role for national parliaments in this regard,295 stipulating that using the procedure for monitoring the subsidiarity principle referred to in Article 5(3) of the Treaty on European Union, the Commission shall draw national Parliaments’ attention to proposals based on this Article.296

This should facilitate an appropriate level of debate in national parliaments and the exercise of accountability over individual Council members. It is not clear what precisely the reference to the subsidiarity monitoring procedure involves, however: is an eight-​week delay envisaged here as under the subsidiarity monitoring procedure; and are justifications for having recourse to Article 352 required?

The role of national parliaments in the justice and home affairs field EU justice and home affairs cooperation has always particularly sensitive given the closeness of policing and criminal law to the traditional functions of a state. For this very reason, a separate intergovernmental EU “pillar” was initially constructed to accommodate such cooperation.297 As experience and trust grew, justice and home affairs cooperation was no longer felt to need a separate “pillar”.

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The Amsterdam Treaty saw large areas of such cooperation moved out of its special corral.298 The Lisbon Treaty largely finished this process, although indications of the sensitivity of this policy area remain. One of them is that national parliaments gain more mention in the Treaty provisions here than elsewhere and, in some respects, are given a larger role. One example has already been seen in this text –​Article 81(3)’s provision for a veto for each national parliament299 on proposals which purport to determine which aspects of family law with cross-​border implications may be the subject of the ordinary legislative procedure. Article 81(3) has now been aligned with the third simplified revision procedure.300 But it remains separate. Another example is the restatement by Article 69 TFEU301 that national parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 (judicial cooperation in criminal matters) and 5 (police cooperation) of Title V of that Treaty comply with the principle of subsidiarity, in accordance with the arrangements laid down by Protocol No. 2. This adds nothing in substance to the general provisions on subsidiarity: it seems to have been inserted simply to underline the role of national parliaments in a sensitive policy area. Another provision, however, does have a substantive impact. Under Protocol No. 2, where reasoned opinions by national parliaments or chambers alleging subsidiarity violation represent at least one third of all of the votes allocated to national parliaments in accordance with that Protocol, then the impugned draft law must be reviewed.302 A lower threshold, however, applies for certain draft laws concerning the area of freedom, security and justice.303 Here, reasoned opinions on non-​compliance totalling merely a quarter of allocated votes suffice. Some other limited provisions concerning the role of national parliaments were inserted in Title V of the TFEU at Lisbon. Under e.g., Article 70, the Council may, on a Commission proposal, lay down arrangements whereby member states, in collaboration with the Commission, evaluate the implementation by member states’ authorities of Union policies in the Title V area.304 Article 70 specifically provides that “national Parliaments shall be informed of the content and results of the evaluation”. This seems to be designed to stimulate national-​ level debate on member state performance in implementing EU justice and home affairs policies.305 Further, Article 71 of the TFEU provides that national parliaments are to be kept informed of the proceedings of a standing committee within the Council for ensuring that operational cooperation on internal security is promoted and strengthened within the Union.306 Article 85 TFEU also provides for regulations determining arrangements for involving national parliaments in the evaluation of Eurojust’s activities.307 Analogously, Article 88 TFEU provides that regulations are required to “lay down the procedures for scrutiny of Europol’s

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activities by the European Parliament, together with national Parliaments”.308 Accordingly, Article 51 of the recently-​adopted Europol Regulation309 provides for political monitoring of Europol’s activities by a specialised Joint Parliamentary Scrutiny Group established by national parliaments and the competent committee of the European Parliament. This Scrutiny Group has extensive information and consultation rights, and also the right to compel Europol officials to appear before it. Evidence of the sensitivity of this area is seen in provisions requiring of directives, rather than more regulations in the field of police cooperation,310 judicial control in criminal matters,311 and criminal law harmonisation,312 giving more implementing discretion to states. However, whether the use of directives leads to greater national parliamentary involvement depends on the member state involved. In Ireland, the Oireachtas frequently exercises little control over the implementation of directives.

The role of national parliaments in the adoption of certain highly significant sub-​Treaty laws or measures Finally, a role for national parliaments seems to be envisaged, at least implicitly, by specific Treaty provisions dealing with the adoption of certain significant sub-​ treaty laws or measures.313 Article 42(2) TEU stipulates that “the European Union’s common security and defence policy shall include the progressive framing of a common Union defence policy, and will lead to a common defence, when the European Council, acting unanimously, so decides”. Article 42(2) TEU stipulates that the European Council “shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements”. In Ireland, the adoption of such a decision by the State would involve not only the intervention of parliament but a referendum, since Article 29.4.9° of the Irish Constitution specifically provides that “the State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State”. Secondly, Article 218(8) TFEU provides that the Council decision, which it is envisaged will conclude the envisaged agreement on the accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms,314 shall enter into force only “after it has been approved by the Member States in accordance with their respective constitutional requirements”. It seems likely that in most member states this will involve some form of parliamentary approval.

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Thirdly, Article 223(1), second indent, TFEU envisages the Council315 laying down provisions for the election of the European Parliament’s members by direct universal suffrage. Here, again, it is provided that “these provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements”. Once again, national parliamentary approval will likely often be involved. Fourthly, Article 262 of the TFEU provides for the Council316 adopting provisions conferring jurisdiction on the Court of Justice in disputes over the application of Treaty-​based acts creating European intellectual property rights. Once again raising the same expectation of some national parliamentary involvement, “these provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements”. Finally, Article 311, third indent, TFEU, according to which the Council is required to adopt a decision laying down provisions on the system of “own resources”317 of the Union.318 This, once more, is a decision which “shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements”.

Conclusion regarding the role of national parliaments in EU law The EU can be viewed as based on a dual legitimacy reflected by the participation of both Parliament and Council in the legislative process.319 The Lisbon Treaty sought to reinforce such dual legitimacy, further extending the powers of the European Parliament through the extension of the use of co-​decision (the “ordinary legislative procedure” )320 and enhancing national parliaments’ role in the various ways detailed above. Lisbon thus represented a considerable step towards “joint parliamentarisation”. National parliaments were explicitly made actors in the EU legislative process. Their input via the subsidiarity mechanism, however, is indirect: instead of being given power to shape legislation directly, they were given power merely to control or monitor its enactment. Moreover, experience to date confirms the expectation that yellow or orange cards would be infrequent. Nevertheless, the mechanism provides an opportunity for national parliaments to have their voices heard, and not just in relation to questions of subsidiarity. The creation of the political dialogue shows national parliaments are not expected to restrict themselves to commentary on subsidiarity issues when dealing with EU draft laws. Nonetheless, what we have been left with post-​Lisbon, is the combination of “considerable legal constitutionalisation and

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institutional adaptation” with “a modest impact with regard to the real patterns of participation”.321 It is, to some extent, a question of what national parliaments want for themselves. As has already been noted in the text above,322 national parliaments have not always impressed with their enthusiasm for a greater role in European policy. Although they were very heavily represented in the Convention on the Future of Europe, little ultimately came… of a range of proposals which would have involved national parliaments in the appointment process of persons in leadership positions in the EU such as the President of the Commission. Moreover the Convention was surprisingly restrained in terms of the extent to which it was prepared to require the involvement of national parliaments in forming the policy agenda prior to the proposal of any actual individual item of legislation. It has also been observed that the members of the Convention generally demonstrated little interest in parliamentary deficits concerning the Common Foreign and Security Policy or the European Security and Defence Policy; enhanced cooperation; and the Open Method of Coordination.323

The entry into force of the Lisbon Treaty marked the beginning of a transition period in which “national parliaments [needed] to show that they can successfully work together and with European institutions in order to intervene efficiently in European Union affairs”.324 In the event, the early warning mechanism in particular has generated much activity but little by way of results in the form of yellow cards. The individual performances of national parliaments in operating the procedure have varied considerably325 (vindicating Ferrer’s prediction that “these provisions established at the European level [would] have more or less efficacy, depending on the organisation and constitutional practices of each member state” ).326 Kiiver has correctly argued the number of yellow or orange cards issued is an inadequate test of the usefulness of the early warning mechanism, because the mechanism is primarily about the duty to justify EU legislation not the right to veto it.327 Nonetheless the relative lack of visible outcomes will probably advance the case for reform –​a topic revisited towards the end of the next part of this chapter. To some extent, therefore, the European-​ordained role of national parliaments remains a work in progress.

How domestic legal systems have tailored the role of national parliaments to take account of EU affairs Beyond examining the role of national parliaments in EU law, as has been done in the foregoing text, some discussion of the adjustments made by domestic legal systems to the role of national parliaments in EU affairs is also apposite.328

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Although the European Communities  –​the progenitor organisations of today’s EU –​were the product of treaties agreed as far back as 1951 and 1957 respectively, it took years and in some cases, decades before domestic legal systems in member states tailored the role of national parliaments to take account of EU membership. Germany’s Bundesrat led the way, setting up a European Affairs committee in 1957. Belgium’s Chambre des représentants followed with the next such committee –​but only in 1962. It was 1989 –​thirty-​eight years after the creation of the Coal and Steel Community –​by the time the parliament of founder member Luxembourg followed suit. By then the trend had been well set. Nevertheless, the slowness of the reaction time of national legal systems paralleled the similarly painfully slow progress of national parliaments gaining increasing express recognition in EU level.329 For a lengthy period, national parliaments thus constituted excellent candidates for the title of the most neglected institutions not merely at EU level but also insofar as concerned their EU-​related role in domestic legal systems: hence Dinan’s memorable description of them as the “institutional Cinderellas of European integration”.330 Perhaps the main challenge for national parliaments was that the transfer of competences to the EU level deprived them of their most fundamental right –​the right to a say on draft legislation. They therefore needed to obtain compensating rights at an earlier stage in the decision-​making process at EU level. Much of this chapter has been devoted to the topic of how the EU legal order itself responded to this need and others. However, the challenges for national parliaments also clearly needed to be responded to domestically. With some delay, rights were eventually secured in the various domestic legal systems, with modified institutional arrangements, committee structures and legal rules. As Auel, Rozenberg and Tacea observed,331 continuing the fairytale analogy, by now “national parliaments are clearly no longer the sleeping beauties of EU affairs: they have been kissed and are wide awake”.332 There is very considerable evidence of this. In a recent three-​year period studied by these authors, national parliaments issued over 4,000 mandates or resolutions, sent over 1,500 opinions to the European Commission and spent thousands of hours discussing EU affairs in plenary sessions and scrutinising them in European Affairs Committees.333 Their investment in European policy issues has thus been considerable. Moreover, the evolving nature of national parliamentary involvement in EU-​ related matters cannot entirely be put down to the slowness of response of national systems. It is partly due to the constantly developing nature of the EU. If national parliaments are to keep pace with such changes, however, an appropriate degree of adaptation on their part will continue to be necessary. There is thus a “longitudinal” aspect to national parliaments’ European-​related activities.334

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There has been considerable variation in how national parliaments have reacted to European integration. Important cross-​national differences exist both regarding the extent and the categories of national parliaments’ EU-​related activities. Factors that explain such heterogeneity include national path dependencies, the domestic institutional strength of national parliaments (or lack thereof), and the degree of Eurosceptical opinion at national level. Moreover, because of limited resources and the many tasks competing for a legislature’s attention, national parliaments have had to make choices concerning priorities. Attempts have been made to categorise the range of national approaches. One recent useful categorisation is Rozenberg and Hefftler’s list of idealised and non-​mutually exclusive models for parliamentary involvement in European matters:335 (i)  policy shapers (who seek to influence government positions); (ii) government watchdogs (who seek to hold the government accountable); (iii) public fora (who seek to communicate with the public);336 (iv) EU experts (who aim at producing expert knowledge about EU initiatives); and (v) European players (who seek to act directly at the EU level). Others throw in the extra category of (vi) scrutiny laggards to cover national parliamentary chambers with an extremely low level of overall activity.337 The limited number of categories thus identified serves to underline the limited number of choices open to national parliaments as to how they will approach European affairs. As Auel, Rozenberg and Tacea put it, perhaps “there is nothing like a single type of parliament in EU affairs, but nor are there 27 –​or 40”.338 There are also major commonalities between all of the national approaches. One illustration of this point is that each of the twenty-​eight national parliaments has established at least one European affairs committee. How are we to measure the relative strengths of the various national approaches? Some writers have focused on a variety of criteria such as access to documents, the timeliness of supply of information and the existence of a mechanism enabling the filtering out of European-​level measures unlikely to prove of interest to national parliamentarians.339 Others have concentrated on the role played by committees or the role of the plenary.340 Winzen has identified three dimensions of parliamentary control in EU affairs:  (i) access to information; (ii) processing of information; and (iii) the enforcement of parliamentary preferences for EU level negotiations.341 Perhaps more penetratingly, Auel has enumerated the “scope, timing, management and impact of parliamentary scrutiny” as factors to be taken into account in measuring the strengths and weaknesses of national parliaments in EU affairs.342 There seems little point in focusing on domestic constitutional provisions and formal rules alone. These will not necessarily be automatically translated into any actual parliamentary behaviour or activity. This is illustrated by the case of

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the Austrian Nationalrat, whose mandating powers are guaranteed in the text of the Austrian Constitution –​and yet, in contrast to e.g., the Danish Folketing makes hardly any use of these.343 Nor is the extent to which a national parliament engages in plenary debates or to the time a national parliament spends debating EU affairs in committee meetings a guide.344 Furthermore, the motivation of parliamentarians must also be taken into account.345 In judging the strength of national parliamentary involvement in European affairs, two factors seem key –​first, parliamentary capacity, and secondly, the motivation of parliamentarians. It nonetheless also has to be admitted that recent research has shown a strong correlation: (a) between the institutional strength of national parliaments and the degree of activity which they engage in; and (b)  between the institutional strength of national parliaments and the kind of activity which they engage in. If one disregards political dialogue opinions, the institutional strength of a parliament in EU affairs has a decisive impact on all types of activities, whether involving the exercise of influencing or merely communicating without more.346 The fact that institutional capacity matters so much results to a great extent from the exercise of rational choices by busy parliamentarians who will only be interested in spending time on activities which have a chance of making some difference. A strong case can be made for the argument that in order to be effective, national parliaments need, in the first place, institutional veto power. More exactly: in order to influence European policy making effectively national parliaments need institutional veto power that can be translated strategically into power to influence. The more a national parliament can credibly threaten to veto the government’s position, the more it is in the interest of the government to engage in informal cooperation with the legislature or its parliamentary majority. Effective cooperation with the executive needs the shadow of veto power of the parliament.347

Apart from institutional veto power, a second factor is arguably also required: engagement in “public parliamentary deliberation and scrutiny of governmental action”. Only when this takes place “can parliaments truly serve as an intermediary between the government and the citizen”.348 Recent years have seen the task of ensuring national parliaments have a role concerning EU policy grow more complex. Reasons have included:  (a) the extensive adoption of delegated legislation at EU level, linked to the use of comitology; (b) the growth of the Open Method of Coordination; (c) the social dialogue process; (d) the creation of EMU –​bringing with it the non-​elected institution, the European Central Bank, and new institutional configurations in the shape of Eurogroup meetings and Eurozone Summits; and (e) a gradually expanding CFSP and CSDP.

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National parliamentary reactions to such phenomena are still only developing. However, if obsolescence is to be avoided, member states’ choices ought to be adapted to take account of these developments. Every Treaty since the Maastricht Treaty has seen increased empowerment of national parliaments in European affairs. This seems likely to continue.349 Information rights under European law might possibly be expanded so as to cover some of the challenging policy-​making areas dealt with above.350 An enhanced form of political dialogue351 to be known as a “green card” mechanism –​a way of enabling national parliaments to make constructive policy suggestions –​was suggested by the House of Lords in its March 2014 report “The Role of National Parliaments in the European Union”.352 This has subsequently been extensively discussed, beginning in an informal working group of national parliamentary chambers which met in Brussels in January 2015 to discuss the Commission’s work programme for that year, and continuing at subsequent working group, COSAC353 and COSAC Chairpersons meetings.354 As recounted in the Commission’s 2015 “Annual Report on Relations between the European Commission and National Parliaments”,355 shortly after the meeting of COSAC Chairpersons, 16 parliamentary chambers came together on the initiative of the UK House of Lords to co-​sign a pilot “green card”. This called on the Commission –​when tabling its revised Circular Economy package –​to adopt a strategic approach to the reduction of food waste within the European Union.356 This initiative on food waste was also supported by two other national Parliaments and one chamber.357 In its response, the Commission thanked the chambers for their suggestions, which it viewed as a clear demonstration of their readiness to contribute in a proactive and constructive manner to the policy debate at European level. Some of the suggestions on food donation, data collection and monitoring were subsequently reflected in the Circular Economy package adopted in December.358

This initiative –​supported by the Houses of the Oireachtas –​clearly offers promise. Other initiatives of significance have included the growing range of interparliamentary fora in which national parliaments now participate.359 The Conference of Speakers of EU Parliaments, gathers together the Speakers of the various Parliaments of the EU Member States in addition to the President of the European Parliament.360 It has de facto assumed the lead role in interparliamentary relations referred to in Article 9 of Protocol No. 1 according to which “the European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union”.361 The Conference meets each Spring in the member state that held the Council Presidency during the second six months of the previous year. Another highly significant body is COSAC –​the Conference of Parliamentary Committees for Union Affairs of Parliaments of the EU –​which has plenary

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meetings twice a year, at which each Parliament is represented by six Members. Each of these plenary meetings is preceded by and prepared for by a meeting of EU Affairs Committee Chairpersons. The European Parliament attends COSAC meetings as a member. The European Commission also attends as an observer. Fora for cooperation which are more sectoral in nature also now exist. One important initiative, has been the European Parliamentary Week. The European Parliament first organised an inter-​parliamentary event on the European Semester for Economic Policy Coordination in February 2012. Renamed the European Parliamentary Week in 2013, it has been held early every year since then. It forms a framework for the Inter-​parliamentary Conference: hence, most recently, in the framework of European Parliamentary Week, national Parliaments were invited to the Interparliamentary meeting on the European Semester Cycles 2015/​2016 on 16 February, which (as its name would suggest) focused on the European Semester process,362 and to the Interparliamentary Conference on Stability, Economic Coordination and Governance in the European Union one day later, on 17 February. This had the broader aim of facilitating debate, exchange of information and best practices in implementing Treaty provisions. Both conferences took place at the premises of the European Parliament in Brussels. Another significant sectoral forum has been the Interparliamentary Conference for the Common Foreign and Security Policy and the Common Security and Defence Policy, which was set up by the Conference of Speakers of EU Parliaments in April 2012 and convenes once every six months. The activities of such ad hoc sectoral fora are therefore in addition to the political monitoring of Europol’s activities now required to be carried out by the Joint Parliamentary Scrutiny Group established by the 2016 Europol Regulation, as envisaged by Article 88 of the TFEU, and which has already been referred to in the text above.363 Meetings organised by the European Parliament may be described as a further form of extra-​Treaty collaboration by national parliaments at European level. The numbers of such meetings and the number of parliamentarians involved are relatively small. 2014 (an election year) saw only six official such meetings, rising to sixteen in 2015, the last year for which figures are available. Most such meetings are what are called “interparliamentary Committee meetings”. These take place at the initiative of a European Parliament committee (or committees), supported by the Directorate for Relations with National Parliaments. On occasion, national parliaments might alternatively be invited to debate a particular item on the agenda of a regular European Parliament committee meeting.364 Visits by national parliamentary delegations to the European Parliament also take place, although here again the numbers are not large given the size of the EU.365

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Meetings and exchanges are also occasionally organised by the services of the European Parliament with officials from national parliaments’ administrations.366 The deployment of videconferencing technology to link national parliaments with the European Parliament is gaining increasing popularity. In October 2015, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs used this technology to debate migration with the French Assemblée Nationale’s EU affairs committee. The German Bundestag’s Finance Committee used it discuss the Single Resolution Mechanism with the European Parliament rapporteur and shadow rapporteurs in February 2014.367 The distances between Brussels and national parliaments, and the very differing work schedules mean this approach may offer future potential. Another means of extra-​Treaty collaboration is the IPEX website, by virtue of which national parliaments (and the European Parliament) upload and exchange EU-​related documents and information. Established pursuant to a recommendation by the EU Speakers Conference in 2000, IPEX was inaugurated in 2006 and relaunched in 2011.368 Interparliamentary cooperation in EU policy has been advanced by the establishment of national parliament offices in Brussels to help counteract the dominance in EU affairs of national executives, initially by the UK House of Commons, the French Sénat, the Danish and Finnish parliaments,369 followed by all member states’ parliaments. Such offices keep national chambers informed about developments in the EU institutions, including negotiations on legislative proposals; help to ensure that the views of their parliaments are communicated effectively to the EU institutions; facilitate visits for Members of their parliaments to Brussels and support delegations at interparliamentary conferences such as COSAC; and share information between national parliaments.370

They also liaise with national government representatives in Brussels. The informal network also serves to alert national parliaments that the threshold for a yellow card may be attainable regarding a legislative proposal.371 There are concerns, however. Most national parliaments focus on a limited range of activities.372 Yet a combination of approaches may be needed given the various forms of EU policy-​making. Furthermore, considerable variation exists concerning the effectiveness of their interventions. Overall, most literature paints national parliaments as victims of integration.373 Conferring by national systems strengthened institutional powers on national parliaments where these are lacking might be helpful and perhaps even constitute a sine qua non in stimulating interest on the part of national parliaments. However, even given institutional incentives for action, there may simply

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be a limit on what busy national parliamentarians concerned with their own re-​ election can do within the EU. As Raunio puts it: MPs normally have their hands full even without engaging in EU questions. Hence when legislators and political parties choose what issues to focus on, they make a rational calculus, weighing the costs and benefits of various parliamentary activities. Considering that re-​election and policy influence are probably the primary goals of most MPs and political parties, focusing on EU matters is not a very attractive option for most deputies.374

For some national parliaments at least and in some “gap” areas at least, the challenge of generating sufficient will on the part of national political parties and national parliamentarians to take on this role may well prove insurmountable. Perhaps the policy area in which there seems the greatest current prospect of national parliaments playing a significant role in establishing accountability is European economic policy, where the economic crisis has provided a certain momentum for parliamentary adaptation. This is partly European-​led, with e.g., the Fiscal Stability Treaty’s provision for a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments to discuss budgetary policies and other issues covered by that Treaty.375 A continuing and key role for national parliaments is also envisaged in the blueprint for further integration constituted by the Five Presidents’ Report.376 Domestic law has also intervened: e.g., a majority of national parliaments now have rules requiring accountability from national leaders in respect of European Council activities.377 The needs of providing accountability require that the role of national parliaments develop beyond its current state. At the current state of integration, this process seems likely to require assistance for some time to come from both the national and EU level, necessitating the composite involvement of both the European and domestic legal orders, further developing the role of European Parliament and national parliaments alike.378

Notes 1 C. Pennera, “Les parlements nationaux dans le système de l’union européenne”, in G. Carlos Rodriguez Iglesias and L. Ortiz Blanco (eds.) The Role of National Parliaments in the European Union 79 at 122. 2 P. Kiiver, The National Parliaments in the European Union: A Critical View on EU Constitution-​ Building (Kluwer, The Hague, 2006) at 77.

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3 The problems in such a one-dimensional approach are well examined in M. Horeth, “No Way Out for the Beast? The Unsolved Legitimacy Problem of European Governance” (1999) Journal of European Public Policy 249–268. 4 See Article 7 of the now-​expired European Coal and Steel Community Treaty, 1951. 5 The EEC Treaty referred to it only as the “Assembly”. It renamed itself the “European Parliamentary Assembly” on 20 March 1958. See Résolution de l’Assemblée parlementaire européenne relative à la dénomination de l’Assemblée (OJ 24 April, 1958, 6). 6 See Résolution de l’Assemblée parlementaire européenne, du 30 mars 1962, relative à la dénomination de l’Assemblée (OJ 26 April 1962, 1045). 7 See now Article 294 TFEU. 8 See e.g., paras. 17 to 19 of European Parliament resolution of 7 May 2009 on the development of the relations between the European Parliament and national parliaments under the Treaty of Lisbon (2008/​2120(INI)). See more generally Kiiver, The National Parliaments in the European Union at 80 to 90. 9 See e.g., Horeth, “No Way Out for the Beast?” 10 See text at n. 114. 11 In the case of the Amsterdam Protocol on the Role of National Parliaments in the European Union. 12 In the case of the Lisbon Protocol on the Role of National Parliaments in the European Union. 13 See Annex I (“Draft IGC Mandate”) to Presidency Conclusions of Brussels European Council, 21–​22 June 2007, 26. (Emphasis added.) 14 See example cited in n. 114 in this chapter. 15 See generally A. Maurer, “National Parliaments in the European Architecture:  From Latecomers’ Adaptation towards Permanent Institutional Change?” in A. Maurer and W. Wessels (eds.), National Parliaments on their Ways to Europe: Losers or Latecomers? (Nomos, Baden-​Baden, 2001) 27 at 65. Kiiver has usefully divided arguments favouring increasing the role of national parliaments between those from a national constitutional perspective and those from a European perspective. (See Kiiver, The National Parliaments in the European Union, Chapter 3.) 16 See e.g., Horeth, “No Way Out for the Beast?” 17 G. Bebr “The European Coal and Steel Community: A Political and Legal Innovation” (1953) 63 Yale Law Journal 1, 38. 18 The European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community. 19 D. Jančić, National Parliaments after the Lisbon Treaty and the Euro Crisis (Oxford University Press, Oxford, 2017) 5–​6. 20 And providing for necessary Treaty amendments. 21 Those stipulated under Articles 201, 236 and 237. 22 See Pennera, “Les parlements nationaux dans le système de l’union européenne” at 122. 23 A. Maurer and W.  Wessels, “National Parliaments after Amsterdam:  From Slow Adapters to National Players?” in Maurer and Wessels (eds.), National Parliaments on theirWays to Europe, 425 at 453.

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24 Ibid., at 434. 25 E.g., the Resolution on relations between the national parliaments and the European Parliament, 16 February 1989 (OJ C 69 (20 March 1989) 149 and the so-​called Carvinho report of 24 September 1991. 26 The Treaty of Maastricht (also known as the Treaty on European Union) was signed on 7 February 1992, entering into force on 1 November 1993. 27 See R. Corbett, The Treaty of Maastricht:  From Conception to Ratification (Cartermill International, London, 1993), 61–​ 62; and A.  Krekelberg, “The Reticent Acknowledgment of National Parliaments in the European Treaties: A Documentation”, in Maurer and Wessels (eds.), National Parliaments on theirWays to Europe, 477 at 477. 28 See Krekelberg, “The Reticent Acknowledgment of National Parliaments in the European Treaties”, at 477. 29 Maurer, “National Parliaments in the European Architecture” at 27 and 52. 30 See Maurer and Wessels, “National Parliaments after Amsterdam”, 440. 31 Krekelberg, “The Reticent Acknowledgment of National Parliaments in the European Treaties”, 477. 32 See M. Knudsen andY. Carl, “COSAC –​its Role to Date and its Potential in the Future”, in G. Barrett (ed.), National Parliaments and the European Union:  The Constitutional Challenge for the Oireachtas and other Member State Legislatures (Clarus Press, Dublin, 2008) 455 at 463. 33 See Maurer, “National Parliaments in the European Architecture”, 51. 34 See Maurer and Wessels, “National Parliaments after Amsterdam”, at 441. 35 See regarding the significance of a critical public attitude to European integration, T. Raunio, “Holding Governments Accountable in European Affairs: Explaining Cross-​ National Variation” (2005) 11 Journal of Legislative Studies 319. 36 The Treaty of Amsterdam, signed on 2 October 1997, entered into force upon ratification by all member states on 1 May 1999. 37 Krekelberg, “The Reticent Acknowledgment of National Parliaments in the European Treaties”, 478. 38 Maurer, “National Parliaments in the European Architecture” at 53. 39 See in relation to the Amsterdam Protocol, Article 311 of the EC Treaty (renumbered such at Amsterdam). 40 Annexed to the Treaty on the European Union and the Treaties establishing the European Communities (as they then were). See Preamble to Protocol. 41 C. Ferrer, “The Role of National Parliaments in the EU after the Lisbon Treaty”, in J. Roy and R. Domínguez (eds.) Lisbon Fado: The European Union under Reform (Miami-​ Florida European Union Center of Excellence and the Jean Monnet Chair of the University of Miami) 145 at 149. 42 The Protocol’s Preamble was somewhat ambivalent regarding European-​level empowerment of national parliaments, with member states recalling in Paragraph 1 that “scrutiny by individual national parliaments of their own government in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State” but also expressing in Paragraph 2 a desire “to encourage greater involvement of national parliaments in the activities of the European Union

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43 44 45 46

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and to enhance their ability to express their views on matters which may be of particular interest to them”. With the use of wording like “as appropriate” in Article 2. Maurer, “National Parliaments in the European Architecture” at 62. See Article 311 of the EC Treaty (as it then was). Paragraph 3 of Conclusions of the XV COSAC held in Dublin, 15–​16 October 1996 stated COSAC’s belief that: Declaration 13 should be reinforced by the Inter-​Governmental Conference, by including it in the Treaty, to ensure that Governments follow through on their commitments under the Declaration and that the National Parliaments have a period of at least four weeks for examining all proposals of relevance to the legislative process.

See further Maurer, “National Parliaments in the European Architecture” at 58. 47 See summary of some of main elements in this debate in Maurer, “National Parliaments in the European Architecture”, 58–​62. 48 Ibid., 64. 49 See more generally, Knudsen and Carl, “COSAC”. 50 The Treaty of Nice was signed on 26 February 2001, entering into force on 1 February 2003. 51 See Contribution adopted by the XXIII COSAC, Versailles, 16–​17 October 2000, paragraph 5 of which urged modification of the Protocol on the role of national Parliaments so that European Commission consultation documents and legislative proposals inter alia be transmitted by electronic means to each national Parliament; extension to further proposals of the para. 3 six-​week time period and a normal minimum 15-​day time period between the final reading of a text by COREPER and a Council decision. 52 More specifically Article 5 thereof. See Krekelberg, “The Reticent Acknowledgment of National Parliaments in the European Treaties”, 478; and Knudsen and Carl, “COSAC”, 469–​470. 53 See paragraph 3 thereof. 54 Para. 4 of the Declaration. 55 Para. 7 of Declaration. 56 See para. 6 of Declaration. 57 See J. Fischer, From Confederacy to Federation: Thoughts on the Finality of European Integration, speech delivered at Humboldt University, Berlin, 12 May 2000; J. Chirac, Notre Europe, speech delivered before the German Bundestag, Berlin, 27 June 2000; and the untitled address given by Tony Blair to the Polish Stock Exchange, Warsaw, 6 October 2000. See further, “Major Findings” in Maurer and Wessels (eds.), National Parliaments on theirWays to Europe, 17 at 32. 58 See Maurer and Wessels, “National Parliaments after Amsterdam”, at 465. 59 R. Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union” (2008) 9 ERA Forum 25 at 27. 60 The conference was brought to a successful conclusion in June 2004, under the then Irish Presidency. 61 See http://​europa.eu/​50/​docs/​berlin_​declaration_​en.pdf (accessed on 4 May 2017).

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62 General Secretariat of the Council, IGC 2007 Mandate (11218/​07 Council of the European Union, Brussels, 26 June 2007). 63 See in particular para. 5 thereof. 64 Para. 3 of the Declaration. 65 Available online at the time of writing at http://​european-​convention.eu.int/​pdf/​ lknen.pdf 66 Former Italian and Belgian premiers Giuliano Amato and Jean-​Luc Dehaene. 67 The other was British Labour Party politician Gisela Stuart. 68 See P. Norman, The Accidental Constitution:  the Making of Europe’s Constitutional Treaty (second edition, EuroComment, Brussels, 2005) at 24. 69 Referred to for this purpose as the Ad Hoc Assembly. 70 The Charter was signed and proclaimed (as a political declaration) by the Presidents of the European Parliament, the Council and the Commission at the Nice European Council on 7 December 2000. Article 6(1) TEU (inserted at Lisbon), now provides the rights, freedoms and principles set out in the Charter are to have “the same legal value as the Treaties”. 71 There were also fifteen representatives of the Heads of State and Government, sixteen representatives of the European Parliament and one representative of the Commission. 72 See generally European Convention, Conclusions of Working Group I  on the Principle of Subsidiarity, CONV 286/​02 WGI 15, Brussels, 23 September 2002. 73 See Conclusions of Working Group I on the Principle of Subsidiarity, para. 6, p. 3. The two Working Groups held a joint meeting on the issue of subsidiarity. 74 See Conclusions ofWorking Group IV on the Role of National Parliaments, para 3 of the Report. 75 Ibid., Section II. 76 Ibid., Section III. 77 Ibid., Section IV. 78 Ibid., Section V. 79 See now regarding the first recommendation, Articles 5(3) TEU and 10(2) TEU. These provisions were supplemented at Lisbon by the addition of Article 12 TEU, discussed in the text below. See now regarding the second recommendation, Article 16(8) TEU. 80 See Article 5 of the then-​proposed Protocol on the Role of National Parliaments in the European Union. 81 See now Article 5 of Protocol (No. 1)  on the Role of National Parliaments in the European Union, discussed in the text below. 82 See now Article 4 of Protocol (No. 1)  on the Role of National Parliaments in the European Union. 83 For the fifth, see now Articles 2 and 1 of Protocol (No. 1) on the Role of National Parliaments in the European Union, examined in the text below. For the sixth, see now Article 1 of the same Protocol. For the seventh, see now Article 7 of the same Protocol. 84 See Article 48(3) TEU. 85 See now Title II of (Lisbon) Protocol (No. 1) on the Role of National Parliaments in the European Union, examined in the text below. 86 See now Article 10 of Protocol No. 1. Emphasis added. 87 Ibid.

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88 See Articles I-​41(2), III-​160, III-​161, III-​162, III-​174(2) and III-​177(2) of the draft Constitutional Treaty produced by the Convention. 89 Articles I-​24(4), of the draft Constitutional Treaty produced by the Convention. 90 Article I-​57(2) of the draft Constitutional Treaty produced by the Convention. 91 See Article 4 of the Protocol on the Role of National Parliaments in the European Union (annexed to the draft Constitutional Treaty). 92 See Article IV-​7(1) of the Convention’s draft Constitutional Treaty. 93 Article III-​160 of the Convention’s draft Constitutional Treaty and the Protocol on the Application of the Principles of Subsidiarity and Proportionality annexed to the Draft Constitutional Treaty. 94 A. Maurer, “National Parliaments in the Architecture of Europe after the Constitutional Treaty”, in Barrett (ed.), National Parliaments and the European Union, 47 at 78. 95 Ibid., at 82–​83. 96 Ibid., at 79–​81. 97 An idea put forward by the French parliament in 1995. See Maurer, “National Parliaments in the Architecture of Europe after the Constitutional Treaty” at 59–​60. 98 CONV 369/​02 (Brussels, 28 October 2002). See Article 19 thereof. The idea was not welcomed by the European Parliament, whose Committee on Constitutional Affairs had already argued that it ignored “the current and potential role of an already existing institution such as COSAC”. [See European Parliament, Committee on Constitutional Affairs (Rapporteur: G Napolitano), Report on relations between the European Parliament and the national parliaments in European integration (2001/​2023(INI) A5–​0023/​2002, Brussels, 23 January 2002) at para. 27 thereof and see generally, Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 28. 99 This could have used either the US Senate model of direct elections in the member states or the Bundesrat model of nominating a number of members from each member state weighted according to population and other factors. See Maurer and Wessels (“National Parliaments after Amsterdam” at 466) who have, elsewhere, described this idea as one of the two main options considered in the post-​Nice reflections, the other being organising interparliamentary exchanges on a larger scale. (See Maurer and Wessels, “Major Findings”, 23.) 100 “Major Findings”, 7. 101 “Major Findings”, 9–​10. 102 Suggested both by Philippe Séguin, then President of France’s Assemblée nationale (see report in Le Figaro of 7 December 1994) and by then Commissioner Leon Brittan (see L.  Brittan, Europe:  The Europe We Need (Hamish Hamilton, London, 1994)  at 227). See generally Maurer, “National Parliaments in the European Architecture”, 58–​59. 103 See Maurer and Wessels, “Major Findings”, 23–​24, and see also Maurer and Wessels, “National Parliaments after Amsterdam”, 466–​468. 104 An idea which also predated the Amsterdam negotiations. See by (French senator) Michel Pionatowski, Rapport d’information no. 45 du 12 novembre 1992 sur le principe de la subsidiarité cited by Maurer and Wessels, “National Parliaments after Amsterdam”, 470. 105 Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 28.

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106 Text available online at http://​europa.eu/​50/​docs/​berlin_​declaration_​en.pdf (accessed on 4 May 2017). 107 See Annex I  (“Draft IGC Mandate”) to the Presidency Conclusions of the Brussels European Council, 21–​22 June 2007. 108 Ibid., paras. 4 and 11. 109 Para. 11 of “Draft IGC Mandate”. 110 Article I-​46 thereof. 111 See Final report ofWorking Group IV on the role of national parliaments, para. 5. 112 Emphasis added. 113 The significance of this step is emphasised by Pennera, “Les parlements nationaux dans le système de l’union européenne”, 87–​88. 114 See para. 11 of Annex I (“Draft IGC Mandate”) to the Presidency Conclusions of the Brussels European Council, 21–​22 June 2007 at 17 thereof. 115 Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 32. 116 The Court has tended to interpret broadly the European Parliament’s legislative rights in the legislative process. See e.g., Case 138/​79 Roquette Frères v.  Council ECLI:EU:C:1980:249, in which it annulled a law because of the failure to consult the European Parliament during its adoption, because such consultation reflected “the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly”. (See para. 33 of ruling.) See also Case 139/​79 Maizena v. Council ECLI:EU:C:1980:250. 117 See Annex I  (“Draft IGC Mandate”) to the Presidency Conclusions of the Brussels European Council, 21–​22 June 2007, 26. (Emphasis added.) 118 See House of Commons European Scrutiny Committee, European Union Intergovernmental Conference: Thirty-​fifth Report of Session 2006–​07 –​Report,Together with Formal Minutes and Written Evidence (HC 1014, 9 October 2007), 23. 119 See, e.g., Article 10 TEU (repeating the wording of Article I-​46 of the Constitutional Treaty) and Article 5 TEU (diverging from the wording of its predecessor article Article I-​11). 120 P. Kiiver, The Early Warning System for the Principle of Subsidiarity (Routledge, Abingdon, 2012), 7 to 8. Kiiver comprehensively lists all instances of Treaty/​Protocol provision for national parliamentary involvement. (Ibid., 7 to 9.) Of necessity, the discussion which follows in the present chapter focuses only on the main aspects of national parliaments’ roles. 121 C. Pennera, “Les parlements nationaux dans le système de l’union européenne” 98. (Translation by the present writer.) 122 Viz. the “Protocol on the role of national parliaments in the European Union” and the “Protocol on the application of the principles of subsidiarity and proportionality”. The latter protocol involved no role for national parliaments, however. 123 Viz,. Working Groups IV and I, respectively. 124 C. Pennera, “Les parlements nationaux dans le système de l’union européenne”, 98. 125 Article 8 of Protocol No. 1. 126 See para. (a) of Article 12. 127 Article 2, Indent 1 of Protocol No. 1.

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128 See for a general discussion of the concept of draft legislative acts, C. Pennera, “Les parlements nationaux dans le système de l’union européenne”, 100 to 101. 129 Article 2, Indent 2 of Protocol No. 1. 130 See further Article 2 thereof. 131 Article 15(1) TEU. 132 Article 2 of Protocol. 133 Even as regards draft legislative acts originating from a group of Member States. Responsibility here is placed on the Council. 134 See Practical Arrangements for the Operation of the Subsidiarity Control Mechanism under Protocol No 2 of the Treaty of Lisbon (Annex to letter published by the President and Vice-​ President of the Commission on 1 December 2009). IPEX –​the Interparliamentary EU Information Exchange –​is also sent a copy of such documents and draft laws. 135 At the time of the coming into force of the Lisbon Treaty, each Chamber of national parliaments of the EU was asked to confirm the language(s) in which it wished to receive Commission documents and to which electronic address they should be sent. 136 At the end of each week, the Commission also sends a recapitulative list of documents that have been sent to each national Parliament in the course of the preceding week, the idea being that a national Parliament should immediately inform the Commission if it has not received all of these, and the Commission can then resend them. (See Practical Arrangements for the Operation of the Subsidiarity Control Mechanism under Protocol No 2 of the Treaty of Lisbon.) 137 Article 2 of Protocol No. 1. 138 Article 3 of Protocol No. 1. Article 6 of Protocol No. 2 also imposes an eight-​week time limit for the sending of reasoned opinions. (See further text below.) 139 Article 4 of Protocol No. 1. 140 Ibid. 141 Article 4. 142 “Recent Developments Concerning the Role of National Parliaments in the European Union”, 38. 143 See regarding all of the foregoing, Article 4 of Protocol No. 1. 144 See Article 3(1) of Council Decision 2009/​937/​EU of 1 December 2009, adopting the Council’s Rules of Procedure. [OJ L 325/​35 (11 December 2009)] and see Ferrer, “The Role of National Parliaments in the EU after the Lisbon Treaty”, 164. 145 See, e.g., Case 138/​79 Roquette Frères v. Council ECLI:EU:C:1980:249, discussed at n. 112. 146 See Article 263 TFEU and Ferrer, “The Role of National Parliaments in the EU after the Lisbon Treaty”, 164. 147 See in this regard, e.g., Case 138/​79 Roquette Frères v. Council ECLI:EU:C:1980:249. 148 See discussion in Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 34. 149 Note concerns expressed by national parliaments in the COSAC Report on the Results of COSAC’s Pilot Project on the Third Railway Package to Test the Subsidiarity Early Warning Mechanism. (Presented to XXXIII COSAC, Luxembourg, 17–​18 May 2005, and reproduced in G.  Amato and J.  Ziller, The European Constitution (Edward Elgar,

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Cheltenham, 2007), p.  217. This change was envisaged in the Brussels Presidency conclusions of June 2007. (Para. 11 of Annex I (“Draft IGC Mandate”) to Presidency Conclusions, 21–​22 June 2007). 150 Article 5 of Protocol No. 1. 151 See in relation to the foregoing Article 1 of Protocol No. 1. 152 Article 6, second indent. 153 See Article 48(7) thereof. 154 Article 6 of Protocol No. 1. 155 See Pennera, “Les parlements nationaux dans le système de l’union européenne” 99. 156 See also Pennera, “Les parlements nationaux dans le système de l’union européenne”, 99. 157 Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 37. 158 Ibid. 159 See further, J.  Martínez Sierra, “Los Parlamentos Nacionales en la Unión Europea” (1998–​99) 90 Revista de la Facultad de Derecho de la Universidad Complutense 235 cited in Ferrer, “The Role of National Parliaments in the EU after the Lisbon Treaty”, 164. 160 See paragraph (f) of Article 12. See generally on the topic of interparliamentary cooperation, N. Lupo and C. Fasone Interparliamentary Cooperation in the Composite European Constitution  (Hart, Oxford, 2016). 161 And also the Treaty Establishing the European Atomic Energy Community Treaty. 162 See Article 9 of Protocol No. 1. 163 The Conference of Community and European Affairs Committees of Parliaments of the European Union. 164 See regarding some details of co-​operation between national parliaments and the European Parliament, Pennera, “Les parlements nationaux dans le système de l’union européenne”, 115–​117. 165 I.e., rather than COSAC. 166 The 1999 Amsterdam Protocol referred merely to “the institutions” in this context, and the failure of the new Protocol to reflect this wording gives the impression that the European Council was carefully exempted from the obligation to receive any such submissions on its promotion to the ranks of an official institution with the coming into force of the Lisbon Treaty. 167 Emphasis added. 168 Examined in the text below. 169 Examined in the text below. 170 Borrowing a phrase of Passos (“Recent Developments Concerning the Role of National Parliaments in the European Union”, 39). 171 But, unlike Protocol No. 1 on the Role of National Parliaments in the European Union, not to the Treaty establishing the European Atomic Energy Community. 172 Diverging slightly but significantly from the wording of Article I-​11 of the Constitutional Treaty, which stipulated that “National Parliaments ‘shall ensure’ compliance”. 173 Their respective predecessors, Article I-​11 and Article III-​259 of the Constitutional Treaty stipulated that “National Parliaments ‘shall ensure’ compliance”. See note 113 in this chapter.

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174 The only two substantive changes made at Lisbon were (a) the extension from six to eight weeks of the period given to national parliaments to send a reasoned opinion on subsidiarity, and (b) the reinforcement of the subsidiarity mechanism (the “orange card” procedure). These topics are examined below. 175 See generally G. Barrett, “ ‘The King is Dead, Long Live the King’: the Recasting by the Treaty of Lisbon of the Provisions of the Constitutional Treaty Concerning National Parliaments” (2008) 33 EL Rev 66 at 74–​75. 176 See, in relation to the latter principle, the Protocol’s Preamble, Article 1 and Article 5 thereof. 177 See Article 1 of the Protocol. 178 Article 5 of the Protocol. 179 Article 10 states, inter alia, that “a conference of Parliamentary Committees for Union Affairs may submit any contribution it deems appropriate for the attention of the European Parliament, the Council and the Commission”, echoing an identically-​worded and numbered Protocol provision intended to have been annexed to the Constitutional Treaty and the Euratom Treaty. 180 See generally Pennera, “Les parlements nationaux dans le système de l’union européenne”, 104–​105. 181 Article 4, indent 1. 182 See Practical Arrangements for the Operation of the Subsidiarity Control Mechanism under Protocol No 2 of the Treaty of Lisbon. 183 Article 4, indent 2. 184 Article 4, indent 3. 185 Article 4, indent 4. Emphasis added. 186 Article 3. 187 See Practical Arrangements for the Operation of the Subsidiarity Control Mechanism under Protocol No 2 of the Treaty of Lisbon. 188 Ibid. 189 Ibid. 190 See Article 6 of the Protocol on the application of the principles of subsidiarity and proportionality annexed to the Constitutional Treaty. 191 See Practical Arrangements for the Operation of the Subsidiarity Control Mechanism under Protocol No 2 of the Treaty of Lisbon. 192 Ibid. This always explicitly mentions the subsidiarity control procedure and specifies the precise deadline involved. 193 See e.g., Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 36. 194 See in this regard Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 37. 195 This obligation is over and above that stipulated in detail in Article 5 to justify draft legislative acts with regard to the principles of subsidiarity and proportionality. 196 A bicameral state such as Ireland thus has one vote allocated to the upper House (the Seanad) and one to the lower (the Dáil).

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197 See Practical Arrangements for the Operation of the Subsidiarity Control Mechanism under Protocol No 2 of the Treaty of Lisbon. 198 Ibid. 199 Ibid. The Commission has indicated that this same course will also be followed in the case of the so-​called orange card procedure, discussed in the text below. In the case of the orange card procedure, the Commission has stated that reasoned opinions received will be annexed to the Communication. 200 See comments made by Maurer and Wessels concerning the idea of a European-​level subsidiarity chamber in Maurer and Wessels, “National Parliaments after Amsterdam”, at 470. 201 See further in this regard House of Commons European Scrutiny Committee, Subsidiarity, National Parliaments and the Lisbon Treaty (thirty-​third report of 2007–​08 Session, 8 October 2008) at paras. 19 to 24. 202 The forty-​third Madrid COSAC in June 2010, decided to cease engagement in such try-​outs. 203 Proposal for a Council Regulation on the Exercise of the Right to Take Collective Action within the Context of the Freedom of Establishment and the Freedom to Provide Services (COM (2012) 130 final (21 March 2012)). 204 Note the inclusion of the Monti II Proposal in the notification of withdrawal of obsolete Commission proposals (2013/​C 109/​04) published in April 2013. (See 2013 OJ C 109/​7 (16 April 2013)). 205 See Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office (COM(2013) 534 final (17 July 2013). 206 See Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Review of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office with Regard to the Principle of Subsidiarity, in Accordance with Protocol No. 2 (COM(2013) 851 final, 27 November 2013). 207 Proposal for a Directive of the European Parliament and of the Council Amending Directive 96/​71/​EC of the European Parliament and of the Council of 16 December 1996 Concerning the Posting of Workers in the Framework of the Provision of Services (COM (2016) 128 final (8 March 2016)). 208 See Communication from the Commission to the European Parliament, the Council and the National Parliaments on the Proposal for a Directive Amending the Posting of Workers Directive, with Regard to the Principle of Subsidiarity, in Accordance with Protocol No. 2 (COM (2016) 505 final (20 July 2016)). 209 See text from just after note 219 in this chapter. 210 See regarding whether “orange card” provisions are cumulative or alternative to those of the “yellow card” system, Barrett, “ ‘The King is Dead, Long Live the King’ ”, 75–​76. 211 See Article 7(3), first indent of Protocol No. 2. 212 J.-​V. Louis, “National Parliaments and the Principle of Subsidiarity  –​Legal Options and Practical Limits” in I. Pernice and E. Tanchev (eds.), Ceci n’est pas une Constitution –​ Constitutionalisation without a Constitution? (Nomos 2009), 132 at 141. 213 Ibid. Emphasis added.

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214 Ibid. 215 Article 7(3), second indent. 216 See text above at n. 191. 217 See obligations in this regard set out in Article 5 and Article 7(2) of Protocol and see Barrett, “ ‘The King is Dead, Long Live the King’ ”, 77–​80. 218 Article 7(3), second indent. 219 For details of how the European Parliament and the Council have reacted, see Pennera, “Les parlements nationaux dans le système de l’union européenne”, paras. 93–​95. 220 See Article 263 TFEU and see Case 138/​79 Roquette Frères v.  Council of the European Communities ECLI:EU:C:1980:249. Cf. however Case C-​65/​93 European Parliament v. Council ECLI:EU:C:1995:91. See also Pennera, “Les parlements nationaux dans le système de l’union européenne”, para. 89. 221 Article 7(3)(a). 222 Article 7(3)(b). For criticism of these vote thresholds, see Barrett, “ ‘The King is Dead, Long Live the King’ ”, 80–​81. 223 See for some reflections in this regard, Barrett, “ ‘The King is Dead, Long Live the King’  ”, 82–​83. 224 Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 35. 225 Ibid. 226 See House of Commons European Scrutiny Committee, Subsidiarity, National Parliaments and the Lisbon Treaty (33rd report of 2007–​08 Session, 8 October 2008)  at para. 20 thereof). 227 Ibid. at para. 21. 228 See also Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 35. 229 The EarlyWarning System for the Principle of Subsidiarity at 4. 230 Ibid. 231 See in relation to Europe as a whole, e.g., the pilot exercises organised by COSAC. (See text above at n. 198.) Regarding Ireland, see Chapter 4 of this book. 232 Opposition of the kind seen, e.g., in relation to the original draft version of the Services Directive, ultimately adopted in heavily amended form as Directive 2006/​123 of the European Parliament and of the Council on services in the internal market [2006] OJ L376/​36. 233 Kiiver, The National Parliaments in the European Union, 68. 234 European Council Conclusions ((EUCO 1/​16) Brussels, 19 February 2016. 235 See Paragraph 2 of the European Council conclusions. 236 See Article 3 of Section C of the Decision Of The Heads Of State Or Government, Meeting Within The European Council, Concerning A New Settlement For The United Kingdom Within The European Union, Annex I to the European Council Conclusions ((EUCO 1/​16) Brussels, 19 February 2016. 237 Paragraph 4 of the European Council conclusions. 238 See joint statement by European Council President Donald Tusk and Dutch Prime Minister Mark Rutte that “as agreed, the ‘New Settlement for the United Kingdom within

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the European Union’… will now not take effect and ceases to exist. There will be no renegotiation.” (Statement by the EU leaders and the Netherlands Presidency on the outcome of the UK referendum, European Council Statements and Remarks ((381/​16) 24 June 2016)). 239 Pennera has speculated that the combined opposition on subsidiarity grounds of the lower Houses of parliaments in large member states would be impossible for the Commission to ignore. (See “Les parlements nationaux dans le système de l’union européenne”, 107.) 240 Available online at http://​ec.europa.eu/​info/​annual-​reports-​relations-​national-​ parliaments_​en. See further D. Jančić, “The Barroso Initiative: Window Dressing or Democracy Boost?” (2012) 8 Utrecht Law Review 78. 241 COM(2016) 471 final, Brussels, 15 July 2016. 242 Its 2015 work programme listed 23 new initiatives, down from an average of 130 proposals in each work programme for the previous five years. (See European Commission, Annual Report 2015 on Relations Between the European Commission and National Parliaments). 243 In 2013, 621 opinions were received, declining, in 2014, to 506 opinions and then in 2015, to 350. (See the Annual Reports for these years, available online at http://​ ec.europa.eu/​info/​annual-​reports-​relations-​national-​parliaments_​en) 244 COM (2010) 291 final (Brussels, 2 June 2010). Opinions communicated from national parliamentary chambers to the Commission rose approximately five-​fold (from 53 to 250) between 2006 and 2009. (See P. Kaczynś ki, Paper Tigers or Sleeping Beauties? National Parliaments in the Post-​Lisbon European Political System (Centre for European Policy Studies, Brussels, 2011) at 10). It jumped a further 55% to 211 in 2010, and a further 60% in 2011 to 622, which was to be the high point of national parliamentary participation. 245 Ibid., 2. 246 The Portuguese Assembleia da República sent 227 opinions in 2012 (34% of the total of 663 opinions sent by national parliaments) but only 55 in 2015 (16% of the total of 350 opinions sent). 247 2015 Annual Report on Relations between the European Commission and National Parliaments, 2. Emphasis added. 248 Ibid., 3. 249 See letter by Commission President Barroso and Vice-​President Wallström of 1 December, 2009, available online at http://​ec.europa.eu/​dgs/​secretariat_​general/​ relations/​relations_​other/​npo/​docs/​letter_​en.pdf 250 See further on this topic, Chapter 5 at p. 232. 251 Article 8 also provides for a limited power on the part of the Committee of the Regions to bring actions against certain legislative acts. 252 See European Convention, Report on the Conclusions of Working Group I on the Principle of Subsidiarity at 7–​8, and see Pennera, “Les parlements nationaux dans le système de l’union européenne”, 109. 253 Passos has argued they do. (See “Recent Developments Concerning the Role of National Parliaments in the European Union”, 30.) 254 Emphasis added. 255 See Article 7(2) of the law 24/​2009 of 22 December 2009. See further Pennera, “Les parlements nationaux dans le système de l’union européenne”, 111.

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256 Pennera, “Les parlements nationaux dans le système de l’union européenne”, 109. 257 A right guaranteed by Article 40 of the Statute of the Court of Justice. See further Pennera, “Les parlements nationaux dans le système de l’union européenne”, 112. 258 See § 12 of the Gesetz über die Wahrnehmung der Integrationsverantwortung des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union (22 September 2009, Bundesgesetzblatt Part I 3022, as subsequently amended by the law of 1 December 2009). 259 See Pennera, “Les parlements nationaux dans le système de l’union européenne”, 110–​111. 260 See more generally on the approach taken by the Court to date, K.  St. C.  Bradley, Legislating in the European Union, Chapter 5 of C. Barnard and S. Peers, European Union Law (Oxford University Press, 2014) at 110–​116. 261 See further G. Barrett, “Creation’s Final Laws: The Impact of the Treaty of Lisbon on the ‘Final Provisions’ of Earlier Treaties” (2008) 27 Yearbook of European Law 3 at 7 to 27. 262 Hence, Article 247 of the Treaty of Rome provided that “this Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional rules…” Effectively identical provision is now made by Article 54 TEU and Article 357 TFEU. 263 See now Article 48 TEU, examined in more detail in the text below. 264 See generally concerning the Convention on the Future of Europe, Norman, The Accidental Constitution. 265 See Article IV-​443(2) of the Constitutional Treaty. 266 See now Article 48(3) TEU, repeating verbatim the relevant sentence of Article IV-​443 of the Constitutional Treaty. 267 It will therefore include the very heads of state and government who will have decided to convene it. 268 The European Central Bank is also required to be consulted in the case of institutional changes in the monetary area. See generally, Article 48(3), first indent. 269 Article 48(3) TEU. 270 See Maurer and Wessels, “Major Findings”, 25. 271 See Article 48(3) second indent. In this case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States. 272 See details in G. Barrett, First Amendment? –​The Treaty Change to Facilitate the European Stability Mechanism (Institute of International and European Affairs, Dublin, 2011) at 3–​4. Pennera has expressed concerns that this avoidance of a convention may set a precedent. (“Les parlements nationaux dans le système de l’union européenne”, 91.) 273 Emphasis added. 274 The possible impact of the amendment procedure is reduced by the express provision in Article 48(6) third indent that such a decision is not to increase the competences conferred on the Union in the Treaties. 275 After consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. 276 See second indent of Article 48(6). 277 See Article 29.4.8° of the Constitution.

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278 See further Barrett, First Amendment? 279 Article 48(7) TEU, first indent. 280 Article 48(7) TEU, second indent. Note that in the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members. 281 Article 48(7) TEU, third indent. This is an effectively verbatim reproduction of a provision found in Article IV-​444(3) of the defunct Constitutional Treaty. 282 The Council acts unanimously after consulting the European Parliament. Article 81(3) second indent. 283 Article 81(3), third indent. 284 See for further detail, Pennera, “Les parlements nationaux dans le système de l’union européenne”, 94. 285 See Article 82(2) paragraph (d)  TFEU; as well as Article 83(1) third indent TFEU; Article 86(4) TFEU; Article 126(14) TFEU; Article 129(3) TFEU; Article 281 second indent TFEU; Article 300(5) TFEU; and Article 308(3) TFEU. Discussed in more detail in Pennera, “Les parlements nationaux dans le système de l’union européenne”, 92–​93. 286 In doing so the Council must, inter alia, act unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament. 287 See Article 25, second indent. 288 Apart from Article 81(3) TFEU, there is also Article 31(3) TEU; Article 153(2) final indent TFEU; Article 192(2) final indent TFEU; and Article 312(2) second indent TFEU. 289 See the Lisbon judgment of the Bundesverfassungsgericht (BVerfG, 2 BvE 2/​08 vom 30.6.2009, Absatz-​Nr. (1–​421). 290 Article 2 provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. 291 Echoing a provision first included in Article I-​58 of the Constitutional Treaty. 292 Article 49 TEU. Emphasis added. 293 See Article 50(2) TEU. The failure to reach an agreement is anticipated, since, under Article 50(3) it is provided that the Treaties “shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the [notification by the relevant member state to the European Council of its intention to withdraw] unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” 294 Replacing and repeating effectively verbatim the proposed Article I-​ 18(1) of the Constitutional Treaty. 295 Replacing and repeating effectively verbatim the proposed Article I-​ 18(2) of the Constitutional Treaty. 296 Insofar as is relevant, Article 5(3) TEU provides that: the institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

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297 See by the author regarding the origins of justice and home affairs cooperation, “Cooperation in Justice and Home Affairs in the European Union –​an Overview and a Critique”, in G. Barrett, Justice Cooperation in the European Union (Institute of European Affairs, 1997). 298 See regarding the impact of the Treaty of Amsterdam, G. Barrett, “Justice Cooperation in the European Union After Amsterdam” (1998) 2 Contemporary Issues in Irish Law and Politics 239. 299 Exercised by the national parliament making known its opposition within six months of being notified of the proposal. 300 The deciding body in Article 81(3) is the Council, however, rather than the European Council. 301 Echoing the provision which had been made in Article III-​ 259 of the defunct Constitutional Treaty. 302 Article 7(2) of Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality. 303 Ibid. Namely, acts referred to in Chapter 4 and 5 of Part III Title V TFEU (regarding freedom, security and justice) together with measures referred to in Article 74 TFEU (which ensure relevant administrative cooperation). 304 Without prejudice to Articles 258, 259 and 260 TFEU, which relate to proceedings against member states for breaches of EU law. 305 Echoing Article III-​260 of the Constitutional Treaty. The European Parliament is also required to be informed under Article 70. 306 This echoes Article III-​261 of the Constitutional Treaty. The European Parliament is also to be kept informed. 307 Article 85, final indent. Similar provision is made by Article 85 regarding the European Parliament (echoing Article III-​273(1) of the Constitutional Treaty.) The Commission’s proposed Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust) Brussels (COM(2013) 535 final, 17 July 2013), will give effect to Article 85 TFEU. Article 14(1)(c) thereof provides for consolidated annual activity reports on Eurojust’s activities to be sent to national parliaments. Article 55(4) provides that Eurojust is to transmit to national Parliaments (a) its Annual Report; (b) the results of studies and strategic projects elaborated or commissioned by Eurojust; (c) working arrangements concluded with third parties; and (d) the annual report of the European Data Protection Supervisor. Under Article 56, every five years, the Commission is to Commission an evaluation report of the implementation and impact of the Regulation and is required to forward that report together with its conclusions to national parliaments. A considerably greater role is provided for the European Parliament under the draft Regulation. 308 See Article 88(2) final indent, echoing Article III-​276(2) final indent of the Constitutional Treaty. 309 Regulation (EU) 2016/​794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) (OJ L 135, 24 May 2016, 53). 310 Article 82(2) TFEU.

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311 Ibid. 312 See Article 83(1) TFEU. See generally Pennera, “Les parlements nationaux dans le système de l’union européenne”, 114. 313 See more generally Pennera, “Les parlements nationaux dans le système de l’union européenne”, 95–​96. 314 Under Article 6(2) TEU, the Union “shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”. 315 Acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament. Under Article 223(1), the Parliament also draws up the proposal to lay down the provisions. 316 Acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament. 317 Which involves the Union providing itself with the means necessary to attain its objectives and carry through its policies. (See Article 311 first indent.) 318 The Council acts in accordance with a special legislative procedure, unanimously and after consulting the European Parliament. 319 Passos, “Recent Developments Concerning the Role of National Parliaments in the European Union”, 34. 320 See in more detail Art. 294 TFEU. 321 Maurer and Wessels’ description of the pre-​Lisbon situation. (in “Major Findings”, 17). 322 See text at n. 229. 323 Barrett, “ ‘The King is Dead, Long Live the King’ ”, 67. See also Maurer, “National Parliaments in the Architecture of Europe after the Constitutional Treaty” at 79–​81, 82–​83 and 78 respectively. 324 Ferrer, “The Role of National Parliaments in the EU after the Lisbon Treaty”, 40. 325 See further the annual Commission reports on subsidiarity and proportionality since 2007. At the time of writing, the latest available report was in respect of the year 2014. 326 Ferrer, “The Role of National Parliaments in the EU after the Lisbon Treaty”, 171. 327 The Early Warning System for the Principle of Subsidiarity at 4. See also review of this book by G. Barrett at (2016) 41 European Law Review 433. 328 The topic is a broad one and has attracted considerable academic attention over the years. For a recent and relatively comprehensive in-​depth examination, see C. Hefftler, C. Neuhold, O. Rozenberg and J. Smith (eds.), The Palgrave Handbook of National Parliaments and the European Union (Palgrave Macmillan, Houndmills, 2015). Among the many other works worthy of mention, see also the older yet still thought-​provoking set of studies contained in Maurer and Wessels (eds.), National Parliaments on their Ways to Europe. Among studies by parliamentary bodies, perhaps the most worthwhile is the report by the EU Committee of the House of Lords The Role of National Parliaments in the European Union (9th Report of the 2013–​14 Session, HL Paper 151). (Note that the written and oral evidence made available to this Committee is available at www. parliament.uk/​documents/​lords-​committees/​eu-​select/​Role%20of%20national%20 parliaments/​national-​parliaments-​evidence.pdf (accessed on 4 May 2017).) 329 See further p. 91 et seq. of this book.

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330 D. Dinan, “Governance and Institutions:  Impact of the Escalating Crisis” (2012) 50 Journal of Common Market Studies 85 at 85. Note also the question of whether they could be termed the “losers” of the process of construction of what is now the EU, posed in the title of Maurer and Wessels (eds.), National Parliaments on theirWays to Europe. 331 K. Auel, O.  Rozenberg and A.  Tacea, “Fighting Back? And, If So, How? Measuring Parliamentary Strength and Activity in EU Affairs”, Chapter 3 in Hefftler et al. (eds.), The Palgrave Handbook of National Parliaments and the European Union. For a contrary view according to which national parliaments are seen as remaining somewhat transfixed by national matters notwithstanding the burgeoning influence of EU law on national legal systems and the consequent constraints imposed on national legislatures, and in this way –​notwithstanding their generally raised activity levels in the European policy field –​still “asleep”, see e.g., P. Kaczynski, Paper Tigers or Sleeping Beauties? National Parliaments in the Post-​Lisbon European Political System (CEPS Special Report, Brussels 2011); H. Kassim, “Europeanization and Member State Institutions”, Chapter 12 in S. Bulmer and C. Lequesne (eds.) The Member States of the European Union (second edition, Oxford University Press, Oxford, 2012). See further O. Rozenberg and C. Hefftler, “Introduction”, Chapter  1 of Hefftler et  al. (eds.), The Palgrave Handbook of National Parliaments and the European Union, 1 at 16–​17. 332 For an analysis focusing on the positive effect of the euro crisis in this regard, see D. Jančić, “National Parliaments and EU Fiscal Integration” (2016) 22 ELJ 225. 333 Auel, Rozenberg and Tacea, “Fighting Back? And, If So, How?” at 75. The three year period stretched from 2010 to 2012. 334 See generally T.Winzen, “National Parliamentary Control of European Union Affairs: A Cross-​national and Longitudinal Comparison” (2012) West European Politics 657. 335 See generally, Rozenberg and Hefftler, “Introduction” at 28. 336 Auel, Rozenberg and Tacea, in “Fighting Back? And, If So, How?” would call these debating arenas. 337 Ibid., at 80. There is an approximate but not complete correspondence between this and the classification by Auel, Rozenberg and Tacea of national parliaments (as regards the nature of their activities) under the broad headings of “scrutinisers”, “debating arenas”, “policy shapers”, “Commission watchdogs” and “scrutiny laggards”. (See Auel, Rozenberg and Tacea, “Fighting Back? And, If So, How?”.) 338 “Fighting Back? And, If So, How?” at 89. These being respectively the number or parliaments and chambers then in the EU. Since the accession of Croatia to the EU in July 2013, the numbers would now be twenty-​eight and forty-​one. 339 See e.g., T. Raunio, “Hesitant Voters, Committed Elite:  Explaining the Lack of Eurosceptic Parties In Finland” (2005) 27 Journal of European integration 381, and Maurer and Wessels (eds.), National Parliaments on theirWays to Europe. 340 See e.g., T. Winzen, “European Integration and National Parliamentary Oversight Institutions” (2013) 14 European Union Politics 297; T. Bergman, “National Parliaments and EU Affairs Committees: Notes on Empirical Variation and Competing Explanations” (1997) 4 Journal of European Public Policy 373. 341 “European Integration and National Parliamentary Oversight Institutions” at 660.

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342 K. Auel, “Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs” (2007) 13 European Law Journal 487 at 487. 343 See in relation to Austria, E. Miklin, “The Austrian Parliament and EU Affairs: Gradually Living Up to its Legal Potential”, Chapter 19 in Hefftler et al. (eds.), The Palgrave Handbook of National Parliaments and the European Union; and B.  Blümel and C.  Neuhold, “The Parliament of Austria: A Large Potential with Little Implications”, in Maurer and Wessels (eds.), National Parliaments on their Ways to Europe at 313. In relation to Denmark, see M. Buskjaer Christensen, “The Danish Folketing and EU Affairs: Is the Danish Model of Parliamentary Scrutiny Still Best Practice”, Chapter 13 in Hefftler et al. (eds.), The Palgrave Handbook of National Parliaments and the European Union; and F.  Laursen, “The Danish Folketing and its European Affairs Committee:  Strong Players in the National Policy Cycle” in Maurer and Wessels (eds.), National Parliaments on theirWays to Europe at 99. 344 The previously-​argued view that the general strength of a national parliament (i.e., including in relation to non-​European matters) or the degree of Euroscepticism of the population as a whole were in turn the most important factors at play in determining the amount of time which a national parliament dedicates to European matters has been challenged in K. Auel and A. Benz, The Europeanisation of Parliamentary Democracy (2006, Routledge, Abingdon). 345 K. Auel and T. Christiansen, “After Lisbon:  National Parliaments in the European Union” (2015) 38 West European Politics 261 at 261. 346 K. Auel, O. Rozenberg and A. Tacea, “To Scrutinise or Not to Scrutinise? Explaining Variation in EU-​Related Activities in National Parliaments” (2015) 38 West European Politics 282 at 298. 347 Auel and Benz, The Europeanisation of Parliamentary Democracy at 87. 348 Ibid. 349 As already noted, the defunct red card mechanism (to accompany the existing orange and yellow card procedures introduced by the Treaty of Lisbon) proposed to be created under the legally-​binding but now defunct commitments given to the UK prior to the 23 June 2016 referendum on “Brexit” (as to which, see text at note 230 in this chapter) seems a likely candidate for resurrection at some future date. 350 This is not to claim that the provision of additional information constitutes a panacea to any difficulties that national parliaments are experiencing in the field of exerting accountability in the field of European affairs. Indeed, in the wake of the Lisbon reforms, national parliaments can legitimately complain of an information overload. Proper filtering resources (in order to separate and discard less important measures) and the power to do something with information once obtained, obviously both play a role in ensuring the usefulness of national parliamentary interventions. Nonetheless the lack of information provided to national parliaments about policy decisions involving the use of e.g., comitology, social partnership and OMC can only be described as a hindrance to national parliaments playing any useful role here. 351 Regarding the political dialogue process, see text above after n. 235. 352 House of Lords, 9th Report of the 2013–​ 14 Session, HL Paper 151 (published 24 March 2014). 353 Conference of Parliamentary Committees for Union Affairs of Parliaments of the EU.

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354 See generally 2015 Annual Report on Relations between the European Commission and National Parliaments at 10 thereof. 355 See 10–​11 thereof. 356 The signatories of this joint opinion were: the Bulgarian Narodno Sabranie, the Croatian Hrvatski Sabor, the Cypriot Vouli ton Antiprosopon, the Czech Poslanecká sněmovna, the Dutch Tweede Kamer, the French Assemblée nationale and Sénat, the Hungarian Országgyűlés, the Italian Senato della Repubblica, the Latvian Saeima, the Lithuanian Seimas, the Luxembourgish Chambre des Députés, the Maltese Kamra tad-​Deputati, the Portuguese Assembleia da República, the Slovak Národná Rada and the UK House of Lords. 357 The Danish Folketing, the Irish Houses of the Oireachtas and the Czech Senát. 358 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 2.12.2015 Closing the loop –​An EU action plan for the Circular Economy (COM(2015) 614 final). 359 See more generally on this and other forms of cooperation, House of Lords, 9th Report of the 2013–​14 Session, 34–​41. 360 In addition, the Speakers of Parliaments of candidate countries for EU membership are invited to participate as observers. 361 See in this regard the European Parliament’s website, at www.europarl.europa.eu/​ webnp/​cms/​pid/​8;jsessionid=2F740E4F84B6B338A4C5862CA696DA79 (accessed on 4 May 2017). 362 According to the European Parliament’s website, this“provided an opportunity to debate the recently proposed changes to the European semester process and exchange of information on best practices in implementing the Semester cycles, and to strengthen cooperation in order to scrutinise the actions of the executive at national and European levels within the framework of the European Semester cycle.” (See www.europarl. europa.eu/​relnatparl/​en/​conferences/​european-​parliamentary-​week.html (accessed on 4 May 2017).) 363 See text at n. 304 in this chapter. See for one good general examination of inter-​ parliamentary fora (with particular focus on economic and financial governance), V. Kreilinger, The New Inter-​Parliamentary Conference for Economic and Financial Governance (Notre Europe-​Jacques Delors Policy Paper 100, Paris, October 2013). 364 See generally, European Parliament, Relations Between the European Parliament and National Parliaments Under the Treaty Of Lisbon: Annual Report 2014–​2015 (Directorate for Relations with National Parliaments, April 2016) at 18–​19. 365 Fifty-​one such visits took place in 2014 (an election year). Ninety-​one took place in 2015. (Ibid., 20) 366 Ibid., 19–​20. 367 Ibid., 20–​21. 368 IPEX is found online at www.ipex.eu/​IPEXL-​WEB/​home/​home.do (accessed on 4 May 2017). 369 See Raunio and Hix, “Backbenchers learn to fight back: European integration and parliamentary government” (2000) West European Politics 142. 370 House of Lords, 9th Report of the 2013–​14 Session, 40.

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371 Ibid., 41. 372 Auel, Rozenberg and Tacea observe that “most chambers, and especially the most active ones, do focus on one type of activity.The Czech Senate and the German Bundestag, e.g., give preference to the plenary, whereas the German Bundesrat or the Swedish Riksdag mainly issue resolutions or mandates. The only chamber that is fairly active in both categories is the Finnish Eduskunta, which again suggests that individual chambers develop their specific mode of dealing with EU affairs.” (Auel, Rozenberg and Tacea, “Fighting Back? And, If So, How?” at 84). Note also that the much-​lauded Danish Folketing and the Finnish Eduskunta hardly involve themselves in the Commission’s political dialogue process. (According to the most recently published report by the Commission, for 2014, the Folketing produced only three opinions for the political dialogue process in that entire year. The Finnish Eduskunta produced none. See in this regard Annexes 1 to 3 to the Annual Report 2014 on Relations between the European Commission and National Parliaments (COM(2015) 316 final) (Brussels, 2 July 2015)). 373 See T. Raunio, “National Parliaments and European Integration: What We Know and Agenda for Future Research” (2009) 15 Journal of Legislative Studies 317 at 327. Some claim national parliaments struggle to control their governments because the former have lost out through the transfer of legislative powers to EU level and because “European integration has tilted the balance of powers at the domestic level decisively in favour of national executives, leading to a major shift in executive-​legislative relations”. (See K. Goetz, and J. Meyer-​Sahling, “The Europeanisation of national political systems: parliaments and executives” (2008) 3 Living Rev. Euro. Gov. 2, 6. See further Maurer and Wessels (eds.), National Parliaments on their Ways to Europe. Others focus on the lack of incentives which exist for politicians and political parties to engage in European matters. (Raunio has commented that “the ability of an individual legislator to influence politics at the European level is probably close to zero, even when the Council decides by unanimity. And… political parties have good reasons not to focus on European matters.” (“National Parliaments and European Integration” at 328.)) 374 Ibid. 375 See Article 13 of the Treaty. Article 3(2) thereof provides that the automatic correction mechanism provided for in Article 3(1) should respect the prerogatives of national parliaments. 376 J.-​C. Juncker (with D.Tusk, J. Dijsselbloem, M. Draghi and M. Schulz), The Five President’s Report: Completing Europe’s Economic and Monetary Union (European Commission, 2015). 377 See W. Wessels, O. Rozenberg et  al. (eds.) Democratic Control in the Member States of the European Council and the Eurozone summits:  In Depth Reports on Twelve Member States (European Parliament, Directorate-​General for Internal Policies, Policy Department C, Citizens’ Rights and Constitutional Affairs) (Brussels, 2013) (The author was the Irish rapporteur for this study.) See also D. Jančić, “Parliamentary Involvement in the Economic and Monetary Union after the Euro Crisis”, in N. Lupo and C. Fasone, Interparliamentary Cooperation in the Composite European Constitution (Hart Publishing, Oxford, 2016). 378 Jančić, “National Parliaments and EU Fiscal Integration” at 248.

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2 Why are we augmenting the role of national parliaments in European affairs? Should we continue to do so?

What are the arguments concerning giving national parliaments an increased role in EU matters? The empowerment of national parliaments: an idea whose time has come? The idea of augmenting the powers of national parliaments in EU policy matters has momentum. There are several possible reasons, e.g., the gradual expansion of EU activities into a wider and more politicised range of policy fields, and the perception that this would help remedy a supposed democratic deficit at European level. As was seen in Chapter 1, the entry into force of the Lisbon Treaty saw the role of national parliaments was for the first time made the subject of express general Treaty provisions in the form of Articles 10 and 12 TEU. These Articles involved a significant symbolic elevation of the status of national parliaments after an almost six-​decade absence of any mention of them in the Treaties.1 Such Treaty provisions are both (a) evidence of change in the role of national parliaments in EU matters, and (b) instruments of that change. National parliaments have been moving from the heretofore largely marginal position they have occupied in such matters. Indeed, the idea that they should do so is now something of a truism.2Yet far more ink appears to have been spilt discussing how an enhanced role for national parliaments should be ensured, than on justifying why this should happen. Consequently, we have “a shallow academic and political consensus that currently supports an enhanced role for national parliaments in the European Union”.3

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The empowerment of national parliaments appears politically popular –​but is it also systemically sensible? Some have argued that the marginalisation of member state legislatures is an inherent effect of the system of executive federalism at the core of the EU’s system of governance, and therefore an unavoidable phenomenon, however regrettable it might be.4 Others argue that politicisation of EU decision-​ making is inevitable and necessary and that national parliaments must play a role.5 Whatever view is correct, if the role of national parliaments in EU policy-​ making is to be strengthened, it seems preferable to do so with a clear idea of what is intended to be achieved. The mere assertion that democracy will thereby be advanced hardly seems sufficient. In the first place, the procedural implications of democracy are not always clear, especially at transnational level (especially in an EU context, where the democratising claims of national parliaments can sometimes be countered with those of the European Parliament). Secondly, the meaning of democracy changes and evolves over time.6 Thirdly, a misguidedly simplistic approach to the requirements of democracy has sometimes led to unexpected and undesirable results.7 Careful reflection is therefore needed. As Kiiver has penetratingly observed, “in a debate where the mere mentioning of the word ‘democracy’ buys support, analytical sensitivity is… priceless”.8

The case for the further empowerment of national parliaments The case for increased powers on the part of national parliaments in the European policy field is generally justified by reference to the legitimacy benefits this entails. Legitimacy has classically been divided into input legitimacy and output legitimacy. Output legitimacy requires that policies adopted represent effective solutions to the problems of the governed.9 In other words it requires that government be “for the people” –​a standard capable of being attained by many forms of rule. Input legitimacy, in contrast, involves government being sufficiently representative and accountable. In other words, it requires government “by the people”.10 This latter form of legitimacy is more usually in dispute when the EU’s democratic legitimacy is questioned. Calls for an increased role for national parliaments are frequently justified by claims that such increases will improve the EU’s input legitimacy. One justification for such calls is that it is the function of a national parliament to supervise the government on behalf of the electorate in all the government’s activities without exception. This includes in the EU policy-​making field, notwithstanding any shift to EU level of the locus of decision-​making. Secondly, it may be argued that increased supervisory powers are necessary to compensate for the shift in power from national legislature to national executive which experience has shown11 is inherent in the process of integration in the European Union.12

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Thirdly, perhaps somewhat paradoxically, it is argued that a strengthened role for a national parliament can result in a strengthened hand for national ministers negotiating in the Council of the EU. It will lead to (a) better rehearsed arguments more in tune with the wishes of the electorate, and (b) a convenient excuse to adhere more tenaciously to a particular national position. Fourthly, the argument may be made that the European Parliament is –​ either inherently (because of the alleged infeasibility of creating EU-​level democracy) or in practice (e.g., because of falling turnouts for European Parliament elections and the failure of such elections to transcend national issues and thus rise beyond the level of second-​order national elections) –​incapable of providing sufficient democratic legitimacy for European-​level decisions. A fifth argument for an increased role for national parliaments derives from the proclamation in Article 10(1) TEU that the Union shall be founded on representative democracy. Representative democracy may be argued to be further strengthened by an increased role for national parliaments, who alone are capable of imposing any kind of democratic accountability on members of the Council (who are not answerable to any other institution). A sixth argument can be made in view of Article 10(3) TEU which states that citizens have the right to participate in the democratic life of the Union and to have decisions taken as openly and closely as possible to them. Arguably, increases in the powers of national parliaments in European affairs bring the EU closer to the citizen. According to this argument, national-​level debates on European issues will increase both transparency in decision-​making and the acceptability of those decisions.13 Seventhly, it has also been argued that the European level may have a pragmatic or technocratic interest in the national parliaments… The argument would essentially be based on cross-​country comparisons which reveal that those parliaments which scrutinise EU legislative proposals ex ante are more efficient at implementing them into national law after their adoption. Thus, the backlog of non-​transposed directives in the UK and Denmark is consistently low. Countries, such as France and Italy, on the other hand, tend to find themselves at the opposite end of the ranking.14

The empowerment of national parliaments has certainly involved a diversification in approach from the original democratisation method of deepening and broadening a directly elected European Parliament’s involvement in the legislative process.15 The change in approach probably has several causes, including (a) decreasing popular participation in European Parliament elections across the EU; and (b) the absence of a single European political space, and the linked failure of European Parliament elections to turn on European issues and go beyond

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mere second-​order elections on national issues. However (c) structural reasons also seem to impede complete reliance on the European Parliament. Unlike in a parliamentary democracy, the European Parliament does not appoint the executive.16 Further, although the European Parliament enjoys a veto over legislation under the ordinary legislative procedure (a power it shares with the Council),17 this procedure is not universally applicable. Although the ascendant view now seems to be that the input both of national parliaments and of European Parliament is required, there is disagreement as to why. Advocates of increased national sovereignty “would like to see the national parliaments, or generally the member states, return to the driver’s seat, which would transform the ‘losers of integration’ into the real ‘masters of the Treaties’ ”.18 For many who hold such views, only national institutions can provide legitimacy, and re-​nationalisation of EU-​level powers can increase the Union’s democratic legitimacy. However, the advocacy of increased powers for national parliaments also seems reconcilable with a more supranationalist viewpoint. For example, a role for national parliaments can be envisaged for where the role of the European Parliament is limited (e.g., the CFSP), or, alternatively, seen as a permanent and necessary aspect of multi-​level governance in the EU.19 The view that empowerment of national parliaments is reconcilable with supranationalism arguably received implicit support from the member states at Lisbon where (as was seen in Chapter 1) several provisions empowering national parliaments were inserted by that Treaty and its associated Protocols.20

The case against the further empowerment of national parliaments in EU affairs A case against the further empowerment of national parliaments in EU affairs can also be made out. The principal argument consists of the dangers of increased polarisation and decreased decision-​making efficiency such empowerment might lead to. In other words: routinely sharpened domestic parliamentary polarisation in the run-​up to negotiations emphasises the national stakes, and generally the intergovernmental element in EU decision-​making, while decreasing EU decision-​making efficiency and eclipsing right-​left discourse on EU level with domestic we-​they debates.21

It is worth bearing in mind that the Council is, in practice,22 a body dominated by the desire to achieve the widest possible consensus and in which vote-​taking, although possible, rarely occurs. Increased parliamentary involvement at national level,23 however, increases the risk of disruption of the delicate compromises

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needed to sustain European-​level consensus by emphasising narrow national interests. This risk is all the greater now that the Council is required to meet in public when deliberating and voting on a draft legislative act.24 National parliaments, elected on the basis exclusively of national interests, are likely to judge executive performance by reference solely to how well national interests have been defended, without heeding other factors which must be borne in mind at EU level such as the need for compromise. The benefits of well-​judged EU-​level increases in national parliamentary powers may well outweigh the disadvantages, but every form of increased involvement by national parliaments should not necessarily automatically be regarded as positive. Depending on the form they take, increases in national parliaments’ EU-​ level powers may imply risks to the efficiency of policy-​making,25 may disturb the delicate EU-​level institutional balance and may raise legitimacy questions. There also seems little evidence that an enhanced role for national parliaments increases popular acceptance of affected decisions at EU level.26 Overall, it seems arguable that: (a) we should be aware not only of the expected benefits of an increased role for national parliaments, but also any potential disadvantages, e.g., in terms of increased efficiency costs;27 and (b) all forms of increase in the role of national parliaments are not equivalent. Just as there is an appropriate role for Commission, Council and Parliament, the same is true of national parliaments: the points in the political process where national parliaments are empowered to intervene, need to be considered carefully.

If an increased role for national parliaments in EU affairs is desirable, what difficulties and challenges should be borne in mind in providing for it? Account must arguably taken of a number of needs, challenges, difficulties and limitations which pertain in the exercise of a European vocation by such national parliaments. These may be enumerated as follows.

Clarity is required regarding EU reforms empowering national parliaments Clarity is needed in defining who is intended to be empowered by European-​ level reforms concerning the role of national parliaments in European policy-​ making.28 The failure to provide such clarity at European level has led to some

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unsatisfactory divergences arising at national level in the implementation of the Lisbon Treaty reforms concerning the role of national parliaments. One example of this concerns Article 8 of Protocol No. 2, which provides that the Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 263 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.

As was seen in Chapter 1, the response of the German legislature to this obligation has been to provide that the lower House of the German parliament, the Bundestag, is obliged to lay proceedings under Article 8 –​and the Government to notify them immediately to the European Court of Justice –​at the request of only a quarter of the Bundestag’s membership.29 A similar rule has been written into Article 86–​6 of the French Constitution, empowering either House of the Assemblée Nationale to bring a challenge (which must then be notified by the Court of Justice) on the application of only sixty members.30 These member states have thus enabled and indeed required the votes assigned to their parliaments to be cast in favour of the view that subsidiarity has been violated even when the view of a clear majority in the relevant chamber may be that this is not the case.31 Yet the inclusion of a major role in the subsidiarity review process for national parliaments seems to have been based on the democratic representativity of those institutions, rather than any expectation that national legal systems would effectively delegate the voting powers of their national parliamentary chambers to an unrepresentative minority of their membership. If adopted more widely, the approach taken by France and Germany would risk disrupting the EU law-​making process on grounds difficult to defend as required by democracy. Another example of an idiosyncratic national approach being taken to the EU-​level assignation of rights to national parliaments concerns a Declaration annexed to the Final Act of the 1997 Lisbon IGC in which Belgium declared that not only the Chamber of Representatives and Senate of the Federal Parliament but also the parliamentary assemblies of the Communities and the Regions act, in terms of the competences exercised by the Union, as components of the national parliamentary system or chambers of the national Parliament.32

The effect of this is that powers apparently intended for deployment by national legislatures are in part being delegated on to regional parliaments by Belgium. Such a lack of uniformity should be of concern. Real European-​level powers are

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being allocated here. It seems only appropriate that an appropriate degree of reflection be devoted to the questions of who such powers should be exercised by and how they are exercised.

A national parliament is best seen as a forum rather than an actor –​in a parliamentary system, it is a forum in which the majority will normally support the government position In a parliamentary system of government, the idea that national parliaments are autonomous and unitary actors is true only to a limited extent. It is more accurate to view a parliament as a forum in which views supportive of the government perspective confront the views of the opposition. Normally, the majority view in that forum will be supportive of the Government position, since defeat of the Government on a question of European policy (like any other) could lead to its fall. This has two implications. The first is that the most important division in everyday political practice is not33 that between executive and parliament: the executive and the majority in parliament will normally be in agreement on major questions of policy. The second implication is that the most practically important duality is instead between the executive plus its supporters in parliament and the opposition in parliament.34 What are the consequences of this? First, it follows that provisions which assume the existence of a simple executive–​parliament duality to maximise impact will be of limited effect in practice. This arguably includes some of the provisions of Protocol No. 2 concerning subsidiarity, the operational efficiency of which is predicated on the willingness of at least some national parliaments to disagree with the national government on the subsidiarity question. Secondly, different levels of accountability can be expected to be demanded of governments by different factions in national parliaments. Auel has usefully distinguished monitoring scrutiny (which involves demanding information on an executive’s actions) and political scrutiny (which involves questioning the appropriateness of the government’s approach). To expect the parliament as a whole –​or, for that matter, a parliamentary committee with a pro-​government majority –​to engage in political scrutiny is to set an unreal standard. As Auel herself points out, as in domestic politics, we can hardly expect the majority party or parties to engage regularly in such political scrutiny publicly, in particular if it involves criticising the government’s actions. In parliamentary systems of government, the function of political scrutiny in terms of assessing and criticising the government’s actions is mainly the

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responsibility of the parliamentary opposition, exercised through instruments such as parliamentary questions and public debate either in a committee or on the floor of the House… In parliamentary systems it is the opposition which acts as the public parliamentary “police patrol” who can force the executive to defend publicly what it has proposed. In doing so, the opposition fixes accountability for the government’s actions and puts itself in a position to assess the political costs for these actions at the next general election35

Thirdly, awareness of the real divisions existing within national legislatures results in some measurements of the strength of national parliaments in EU matters losing some of their relevance.36 Gallagher has observed, to consider parliament and government as two separate bodies competing with each other is to ignore the reality of party domination of parliament and government. Any effective increase in the role or power of “parliament” vis-​à-​vis government means, in effect, an increase in the role or power of the opposition, not of parliament as a collective body. The role of government backbenchers, willingly accepted, is to sustain the government rather than to act as independent scrutinisers of it; government backbenchers do not seek additional means of holding their own ministers to account. The ongoing battle of government versus opposition is paramount and tangible; the notion of a contest for power between government and parliament bears little relation to political reality.37

One should not overstate this case. Although the majority in a national parliament may be closely aligned to the government, the two are not the same. In some member states, the influence of the national parliament is maintained by having powers which can be used in extremis to rein in an executive which strays too far from the views of a parliamentary majority in EU affairs, just as the influence of a national parliament in domestic matters is maintained by a parliamentary veto power over legislation. The actual exercise of either power will be a rarity in practice. The existence of such powers is also of value in terms of conferral of democratic legitimacy on the policy-​making process. Two principal parliamentary devices are used to leverage the influence of member state parliaments in European affairs, namely (a)  mandate systems (most famously used in Denmark) under which a parliament issues instructions to the executive determining the limits of the latter’s negotiating position in Council; and (b) scrutiny reserve systems (used e.g., in the UK) according to which a national minister is precluded from reaching agreement in Council on a proposal before the national parliament has completed scrutiny of it. Of the two, the mandate system gives the greater powers to national parliaments. However,

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appearances can be deceiving. The level of duality between the Government and parliament in mandated systems can be far less than meets the eye. Thus e.g., the Danish executive itself decides where a mandate should be sought and where it should not,38 then drafts its own mandate. Furthermore, the atmosphere in the Danish European Affairs Committee meeting is frequently so consensual as to draw comparisons with an extended cabinet meeting.39 Ultimately, of course, no matter how strong a national parliament’s legal powers are concerning EU affairs, this matters little if a parliamentary (or committee) majority never, or only very rarely, attempts to use them (even if only to leverage influence). The mismatch between the constitutionally-​conferred mandating powers of the Austrian parliament and its relative lack of influence in policy formation is a good example.40

National parliaments differ considerably from one another in various highly significant respects National parliaments vary greatly in terms of their functions, structure and composition, the context in which they operate and the way they exercise their powers. This needs to be borne in mind in contemplating any increases in their European policy-​related functions. First, there is heterogeneity in terms of national parliaments’ functions. An example of this is that while in most member states, the executive is responsible to the parliament, this is not universally so: the French Assemblée Nationale does not elect that country’s President. The functions of national parliaments, and the way these are undertaken, are not of course, all formally determined. Traditions may also exist concerning the appropriate role of national parliaments and their organisation (e.g., as a talking or a working parliament or with a weak or strong committee structure). The strength of party political systems also varies considerably between countries.41 Because of this, reforms may impact differently in different member states. Secondly, there is variety in national parliaments’ institutional architecture. Hence, to take one obvious example, the EU is split between thirteen member states with bicameral national parliaments (namely, Austria, Belgium, the Czech Republic, France, Germany, Ireland, Italy, the Netherlands, Poland, Romania, Slovenia,42 Spain and the UK) and fifteen states with unicameral legislatures (namely, Bulgaria, Cyprus, Denmark, Estonia, Finland, Greece, Hungary, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia, Sweden and Croatia). Thirdly, national parliaments are also varied in their composition: more specifically, in the make-​up of their upper houses. Of the thirteen member states with bicameral parliaments, some (the Italian, Polish and Romanian Senates) are

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directly elected. The UK’s House of Lords, in contrast, is entirely appointed. The Irish Seanad is part-​elected and part-​appointed.43 Some upper houses like the German Bundesrat are neither elected nor appointed, but instead consist of delegates from state governments. Fourthly, national parliaments also operate in different political contexts, capable of leading to differing approaches concerning EU-​ related powers. Hence, for example, national parliaments may demand more accountability in European affairs if there is a national context of Euroscepticism,44 and also have more influence where there is a minority government.45 Finally, there are significant differences in how national parliaments exercise powers conferred by EU law, with some having chosen e.g., to allow a minority of their membership to govern the exercise of such powers.46 The implications of all of this are that efforts to empower national parliaments at EU level may vary considerably in their impact depending on the national parliament concerned.

Various serious resource and other constraints apply to national parliaments in the European policy field Attempts to empower national parliaments are subject to other constraints. One is that they are outsiders to the European level policy-​making process, being neither geographically close to the locus of EU decision-​making nor institutionally involved in the actual process of decision-​making.47 A second constraint is that national parliaments are subject to major informational asymmetries vis-​à-​vis their national executives. Government ministers are members of an EU institution (the Council). National civil servants may participate in the Committee of Permanent Representatives (COREPER). While the Lisbon Treaty brought with it provisions designed to rebalance informational asymmetries,48 these are not sufficient alone to bridge the information gap between national executives and parliaments. The quantity of information reaching national parliaments makes necessary systems to filter out less important data, the efficiency of which, however, depends much on parliamentary research and administrative resources. Information about EU policy initiatives also normally needs contextualisation by information normally available only to national executives, such as the intended national position on the initiative. Over and above these limitations, and as was noted in Chapter 1, a question mark also hangs over the interest of many –​perhaps most –​national parliamentarians in engaging in scrutiny work on European policy initiatives.49 The best parliamentary scrutiny and accountability system in the world cannot operate successfully in the absence of parliamentarians willing to operate it.

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Even in relatively Eurosceptical countries, there appears to be little electoral recompense for such work.50 It is perhaps therefore unsurprising that across Europe, there tends to be a distinct lack of appetite on the part of many parliamentarians to engage in European scrutiny work.51 Historically, lack of interest has tended to be exacerbated among Irish parliamentarians by other factors such as the particularly high premium apparently placed by the electorate on constituency work, and the requirement that parliamentarians engaged in European-​ related committee work also cope with the demands of membership of one or more other committees.

Effective use of national parliamentary powers in the European policy field requires an appropriate balance of centralisation with inclusiveness There has been a widespread centralisation of EU-​related national parliamentary powers through the setting up over time of European affairs committees. The process began with the 1957 decision of the Bundesrat (the upper house of the German parliament) to create a Committee on the Common Market and the  Free Trade Area.52 Thereafter, progress was strikingly slow. Belgium’s Chambre des représentants and Italy’s Senate created similar such committees –​but only in 1962 and 1968 respectively. Gradually, however, the idea of such committees took root, and they are now to be found in all twenty-​eight EU member states. Since many states are both bicameral and have chosen to have a committee for each House, this means that there are thirty-​seven such committees across the twenty-​eight member states of the EU (where there are a total of forty-​one parliamentary chambers).53 It is difficult to pinpoint exact dates for the creation of these committees (since many national European affairs committees have been reorganised, reformed, renamed or re-​established with broader remits over the years)54 but taking the relevant date as being that on which the earliest EU-​ related committee was formed in the relevant national parliament or parliamentary chamber. The formation date of these committees is as shown in Table 2.1 below. The slow start in creating such committees has already been noted in Chapter 1. Remarkably, by the twentieth anniversary of the signing of the Treaty of Paris in 1971, only five of the eleven national parliamentary chambers across the member states had such a body.55 The 1973 accession of the UK, Ireland and Denmark resulted in a spike in the creation of such committees. Such bodies were created just before or after accession in all three new member states and in three original member states (Italy, the

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Table 2.1.  Dates of creation of existing European affairs committees or their predecessor committees in national parliamentsa Decade

1950s

1960s

1970s

1980s

1990s

2000s

Number of European affairs committees created in parliaments/​ chambers of states now in EU Details

1

2

8

6

16

5

Germany (Bundesrat) (1957)

Belgium (Chambre des Représentants) (1962) Italy (Senato) (1968)

Netherlands (Eerste Kamer) (1970) Italy (Camera dei Deputati) (1971) Denmark (1972) Ireland (1973) United Kingdom (House of Commons) (1974) United Kingdom (House of Lords) (1974) France (Assemblée Nationale) (1979) France (Sénat and Assemblée Nationale) (1979)

Portugal (1980) Spain (1985) Belgium (Chambre des Représentants (1985) Netherlands (Tweede Kamer) (1986) Germany (Bundestag) (1987) Luxembourg (1989)

Greece (1990) Hungary (1992) Poland (Sejm) (1992) Poland (Senat) (1992) Slovenia (Državni svet) (1993) Sweden (1994) Finland (1994) Romania (1995) Latvia (1995) Malta (1995) Austria (Nationalrat) (1995) Austria (Bundesrat) (1996) Estonia (1997) Lithuania (1997) Czech Republic Senát (1998) Cyprus (1999)

Croatia (2000), Bulgaria (2001) Czech Republic (Poslanecká sněmovna) (2004) Slovakia (2004) Slovenia (Državni zbor) (2004)

 Source: author’s own compilation, derived in the main on information provided on COSAC website at www.cosac.eu/​en/​info/​scrutiny/​eac/​For_​more_​info/​ and Table 1 in Norton, loc. cit., n. 49.

a

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Netherlands and (with some delay) and France). By the end of the 1970s, eleven such committees existed across a total of seventeen national parliamentary chambers.56 During the 1980s, five additional committees were created (two in newly acceding member states, three in existing states) leaving a balance at the end of the 1980s of sixteen European affairs committees in twenty chambers.57 The 1990s saw a major rise in the number of European affairs committees in states which are now EU members. Of the thirty-​seven European affairs committees which now exist in the EU, sixteen (43% of the total number) were founded in this decade, and a further five in the next decade –​bringing the total since 1990 to date to twenty-one out of thirty-​six –​in other words, 58% of the total number of committees. This makes EU affairs committees in national parliaments an institutional innovation of surprisingly recent vintage. Their sudden growth in popularity in the 1990s took place for several reasons. A key factor, however, was clearly the enlargement of the Union, which has seen sixteen of the current twenty-eight member states (57% of the total number of member states) join since 1995. Austria, Finland and Sweden all acceded in 1995, each of them creating European affairs committees in their parliaments just prior to or after accession.58 Eleven European affairs committees were created during the 1990s in anticipation of future accession to the EU by states which would later join the EU in the 2004 and 2007 enlargements (an anticipatory approach mirroring the example already set in this regard by Denmark, Finland and Sweden). It was seen as increasingly normal from the time of the first enlargement onwards, for acceding member states to create a European affairs committee around, or even before, the time of accession59 –​something not the case when the Communities were founded in the 1950s. This may have been because the immense economic significance of the Communities only became more evident as time went on. Or it may have had something to do with the perceived failure of direct elections to the European Parliament to silence complaints of a perceived democratic deficit. The 1990s also saw a growth in concerns about the need to bring the EU closer to its citizens, particularly in the wake of the traumatic initial Danish “no” vote to Maastricht. At any rate, by the end of the 1990s, European affairs committees of some description existed in thirty-​two of the thirty-​seven parliamentary chambers where they are now to be found, with the remaining five being created in the first years of the new century. Relatively speaking, the strongest European affairs committee in terms of its powers vis-​à-​vis the executive is that of the Danish parliament.60 The Danish model also appears to have been the one most imitated by states whose accession to the EU has post-​dated that of Denmark.61

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The advantages of the creation of European affairs committees mirror to some extent those of the setting up of any parliamentary committee. They include (a) the delegation of EU-​related tasks to a numerically smaller sub-​group of a national parliament’s total membership thereby facilitate more effective action; and (b) facilitation of the development of expertise in EU matters among parliamentarians. Such expertise enables them (i)  to have an overarching understanding the institutional workings of the EU; (ii) to address sometimes complex substantive European questions, and (iii) to provide some kind of check on an executive branch with an enormously greater means of informing itself on such issues. The difficulty with processing all EU issues through European affairs committees, however, is that –​given the application of EU law to an increasingly broad range of disparate policy areas –​expertise in European policy alone is not now sufficient to enable a parliament to maximise its influence. Furthermore, it “quarantines” EU law issues, excluding all but a small group of parliamentarians from any real role in relation to them. A means for (i) deploying subject-​specific expertise –​and (ii) enhancing inclusiveness in dealing with European policy matters is therefore arguably needed. It is here that a role can arise for sectoral committees. As Raunio observes, bringing specialised committees onto the scene means that all MPs, and not just the small minority in the [European Affairs Committee], become routinely involved in EU matters. As a result the parliament makes better use of its own policy expertise and is able to monitor the government’s behaviour more effectively, a rationale that applies in general to the empowerment of committees.62

Indeed, it is possible to envisage European issues being dealt with entirely by a range of sectoral committees. However, as was discovered by the Dutch Tweede Kamer63 which at first had the intention of adopting exactly such an approach, there are also disadvantages to a wholly sectoral approach, without any centralised coordination. The objectives of efficiency and of maintaining a uniform level of scrutiny across a range of committees may both be hindered. Moreover, in practice, the experience in more than one member state has been that within individual sectoral committees, European policy matters may end up being neglected in favour of more familiar domestic issues, and consequently an inadequate standard of scrutiny provided regarding European matters.64 The building up of an adequate degree of expertise among parliamentarians in European policy-​making matters may also be hindered by dividing up the EU-​related issues across many committees. It also seems inadvisable to divide up too that minority

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of national parliamentarians who will normally be interested in European affairs. Overall, an entirely sectoralised approach appears to risk being a disjointed, fragmented, incoherent and sub-​standard approach to European issues. The optimum arrangement probably therefore involves some method of combining centralisation and inclusiveness. A centralised or “sinkhole” approach to European matters, on the one hand, and a decentralised or “fragmented” approach on the other, should thus both be seen as extremes, the use of either one of which in exclusivity will result in a failure to provide an appropriate standard of national parliamentary accountability for European affairs. Various means have been found by national parliaments of combining the merits of centralised and decentralised approaches.65 One inclusive technique –​ used in the Oireachtas (and not merely in relation to European matters) –​is to allow attendance at Committee meetings by parliamentary colleagues who are not committee members. Similarly, all members of the Austrian upper House, the Nationalrat, are permitted to attend sittings of that body’s EU Committee in an advisory capacity.66 An alternative approach somewhat along the same lines is that of the EU Committee of the House of Lords. This is made up of a Select Committee which has nineteen members. However it also has six sub-​committees with a collective membership of seventy-​one members,67 so that in total close to 10% of the membership of the House is involved in European policy matters. Using sectoral committees is a widely-​employed means of involving large numbers of parliamentarians in European affairs. An early mechanism for involving sectoral committees in European scrutiny in Ireland was seen in the 30th Dáil period, when the Joint Oireachtas Committee on European Scrutiny enjoyed the power to refer draft European laws to sectoral committees for further scrutiny. Little success was experienced in engaging other parliamentarians in scrutiny by using this method, however68 (leading to the introduction of mainstreaming in the 31st Dáil period). In other parliaments (e.g., the Danish Folketing), the process of involvement of other committees has for long operated differently. Sectoral committees of the Folketing, as well as the European Affairs Committee, receive memoranda from the Government on EU matters falling within their sectoral subject matter competence. The sectoral committees can issue statements supporting the European Affairs Committee’s considerations and e.g., issue joint responses to Commission Green and White Papers.69 Another approach to sectoral involvement has been that of Sweden in requiring that Swedish MPs be members of committees besides the European Affairs Committee and further to expect the independent participation of those other committees in relation to draft EU measures of relevance to their subject area, with

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their reports either to be debated before the full House, or the European Affairs committee, as the case may be.70 It has been reported that in reality, however, the role of standing committees in the Riksdag has so far remained limited. Each standing committee has the right to receive information from the Government on issues falling within its competence. However, while the standing committees are sent the relevant documents, they very rarely bother to issue any opinions on the basis of that information. Most of the information between standing committees and the EU-​nämnden71 is exchanged within party groups.72

A stronger approach than the Swedish one is that of Finland, which confers on fourteen permanent sectoral committees a major role in scrutiny work. These committees report to the Grand Committee of the Eduskunta (the largest committee in that parliament) which then prepares a Government mandate.73 In the (sample) year 2006 alone, 225 such reports were submitted by sectoral committees of the Eduskunta, with the most strongly engaged having been the Finance Committee (with thirty-​five such reports).74

Effective national parliamentary involvement in European policy matters requires an adequate structure Effective national parliamentary involvement in EU policy matters requires adequate structure, e.g. the provision of adequate information and adequate time to carry out these functions. Dialogue with the executive also seems necessary. Adequate incentivisation for the executive to engage in dialogue with the national parliament may also be needed. Many European states having provided this by creating either a mandate system or a scrutiny reserve binding national ministers negotiating on the national behalf in the Council.75

Notes 1 As is seen in Chapter 1, however, explicit mention of national parliaments in the text of the Treaties was preceded by their mention in Declaration (No. 13)  on the Role of National Parliaments in the EU and Declaration (No. 14)  on the Conference of the Parliaments, both agreed by the intergovernmental conference which adopted the Treaty of Maastricht in 1992, and Protocol (No. 13) on the Role of National Parliaments in the EU adopted in the Final Act of the intergovernmental conference which adopted the Treaty of Amsterdam in 1997. 2 P. Kiiver, The National Parliaments in the European Union: A CriticalView on EU Constitution-​ Building (Kluwer, The Hague, 2008) at 71.

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3 Ibid., xiii. 4 See P. Dann, Parlamente im Exekutivföderalismus (Springer, Berlin, 2004) cited by Kiiver, The National Parliaments in the European Union and reviewed by A.  Türk at (2010) 7 German Law Journal 525. 5 See P. Weber-​Panariello, Nationale Parlamente in der Europäischen Union (Nomos, Baden-​Baden, 1995). 6 For historical analysis, see J. Keane, The Life and Death of Democracy (Norton, New York, 2009). 7 See cases cited in F. Zakaria, The Future of Freedom (Norton, New York, 2003) especially at 169 to 172 where he notes of reforms designed to improve the openness and responsiveness of Congress that “reforms designed to produce majority rule have produced minority rule”. See also D. Broder, Democracy Derailed –​Initiative Campaigns and the Power of Money (Harcourt, Orlando, Florida, 2000), R. Ellis, Democratic Delusions (University Press of Kansas, Lawrence, Kansas, 2002) and P. Schrag, Paradise Lost (New Press, New York, 1998). 8 The National Parliaments in the European Union at 110. 9 F. Scharpf, “Problem-​Solving Effectiveness and Democratic Accountability in the EU” (Max-​ Planck-​Institut für Gesellschaftsforschung Working Paper 03/​1, February 2003). 10 As Lenaerts puts it: “input legitimacy is satisfied by means of the democratic principles of representation and accountability. What is at stake here is, on the one hand, direct representation of the people at the legislative level where the basic policy choices are made and indirect representation at the executive level, and, on the other hand, accountability of executive decision-​makers vis-​à-​vis directly elected representatives at all levels of Union governance… Accountability requires transparency as a pre-​condition because executive or regulatory bodies may only be controlled or held accountable if the way they operate is known and can be scrutinized.”

(K. Lenaerts, “The Merits and Shortcomings of the Draft Constitution for Europe: a First Appraisal” (Speech delivered at the occasion of the Faculty Colloquium on the EU’s Draft Constitution, 15 December 15 2003.) 11 And the design of the EU’s legislative process –​with its recruitment of members of national governments into its principal legislative organ, the Council of Ministers  –​ might have led one to expect. 12 National parliaments are not always correctly considered the losers of European integration. (See for some interesting arguments in this regard, F. Duiana and M. Oliver, “National Parliaments in the European Union: Are There Any Benefits to Integration?” (2005) 11 European Law Journal 173). Some parliaments (including the Oireachtas) had a relationship of pronounced subordination to the national executive long before European integration intervened. (See Chapter 3 of this book.) Further, if European integration has led to loss of influence on national parliaments, sometimes it has merely accelerated a trend already present for other reasons. 13 Cf. text at n. 26, however.

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14 Kiiver, The National Parliaments in the European Union at 79. 15 See further Chapter 1. 16 Nor –​unlike in non-​parliamentary democracy –​is the executive directly elected. In the EU, executive power is split between the Commission and the Council. Under Articles 14 and 17(7) TEU, the European Parliament elects the Commission President, although under Article 17(7) indent 1, its choice is limited to a candidate whom the European Council proposes to it, acting by qualified majority and taking into account the elections to the European Parliament. Note the recent effective limitation of the European Council role by the introduction of the Spitzenkandidät system in 2014 (as to which see R. Corbett, “European Elections are Second-​Order Elections’: Is Received Wisdom Changing?” (2014) 52 Journal of Common Market Studies 1194). Under Article 17(7) indents 2 and 3, the President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission are also then subject as a body to a vote of consent by the Parliament. (However Parliament’s choice is constrained:  the Council, by common accord with the President-​elect, adopts the list of persons –​ other than the President –​whom it proposes for appointment as members of the Commission (selecting them on the basis of the suggestions made by Member States). The Commission is then appointed by the European Council, acting by a qualified majority. In practice, the European Parliament has increased its powers to the extent of exercising a veto on individual proposed Commissioners, by holding hearings for all proposed Commission members, and rejecting them all if dissatisfied with any individual candidate. 17 See Article 294 TFEU. 18 Kiiver, The National Parliaments in the European Union at 81. Kiiver has distinguished usefully between arguments in favour of the empowerment of national parliaments which drawn from a national perspective (frequently, although far from exclusively put forward by those who are sceptical as to the benefits of European integration) and arguments drawn from a European perspective (Ibid., at 72)  See for a discussion of the impact of the EU on national polities, V. Schmidt, Democracy in Europe –​the EU and National Polities (Oxford University Press, Oxford, 2006). 19 Kiiver, The National Parliaments in the European Union at 80 to 82. 20 See text below. See also Chapter 1 and Kiiver, The National Parliaments in the European Union at 77. 21 Ibid., xiv. 22 See D. Naurin and H. Wallace (eds.) Unveiling the Council of the European Union: Games Governments Play in Brussels (Palgrave Macmillan, Houndmills, 2008) and R. Thomson, Resolving Controversy in the European Union:  Legislative Decision-​Making Before and After Enlargement (Cambridge University Press, Cambridge, 2011). See also F.  Hayes Renshaw and H.  Wallace, The Council of Ministers (second edition, Palgrave Macmillan, 2006). 23 Which may either formally or informally constrain the freedom of action of ministers to some extent.

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24 See Article 16(8) TEU and Article 15(2) TFEU Compare in this regard Zakaria, The Future of Freedom at 169 to 172. 25 See in this regard e.g., Anon., ”Merkel darf in Brüssel nicht entscheiden” Frankfurter Allgemeine Zeitung online edition, 20 October 2011, where it was reported that the European Council meeting on Sunday, 23 October 2011 would be unable to reach a formal decision dealing with the eurozone crisis because the Chancellor had received no mandate from the Bundestag budgetary committee. This was because the state of negotiations left the Chancellor unable to give sufficient details of the negotiations to the Bundestag on Thursday, 20 October in order to enable parliamentarians to debate a mandate. Ultimately, the Committee provided the necessary negotiating mandate on Friday, 21 October, albeit in very hurried circumstances, and against the votes of the Opposition. (See Anon., “Haushaltausschuss billigt Leitlinien”, Frankfurter Allgemeine Zeitung online, 21 October 2011.) See also Anon., “Merkel Begs for Time on Plans”, Financial Times, 21 October 2011, P. Spiegel and G. Wiesmann, “Europe on Edge as Rescue Talks Stall”, Financial Times, 21 October 2011 and A. Beesley, “Franco-​German Delay on Aid Plan Angers Partners”, Irish Times, 22 October 2011. A planned summit in China between the EU and China was postponed in consequence of the rescheduling. (See A. Beesley, “Summit Between China, EU Postponed As Crisis Deepens”, Irish Times, 21 October 2011). Two working days later, Chancellor Merkel was before the budgetary committee again, seeking a new mandate for a further summit meeting. (RTÉ news 25 October 2011 (available online at www.rte.ie/​news/​2011/​1025/​bailout.html?view=print) (accessed on 12 May 2017). 26 Proissl has noted that in Germany, decisions relating to the financial rescue of eurozone states have tended to generate far more political controversy when subject to domestic parliamentary scrutiny than is otherwise the case. W. Proissl, “Will Merkel Transform the Eurozone into a German Europe?”, lecture at the Institute of International and European Affairs on 22 February 2011 (available online at www.iiea.com/​events/​ germany-​in-​the-​eu-​tbc (accessed on 12 May 2017)). 27 See previous footnote. 28 See more generally on this point Kiiver’s valuable discussion of national parliaments in a European constitutional perspective (The National Parliaments in the European Union, Chapter 1). 29 See § 12 of the Gesetz über die Wahrnehmung der Integrationsverantwortung des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union (22 September 2009, Bundesgesetzblatt Part I 3022) as subsequently amended by the law of 1 December 2009). 30 See C. Pennera, “Les parlements nationaux dans le système de l’union européenne” in G. Carlos Rodriguez Iglesias and L. Ortiz Blanco (eds.) The Role of National Parliaments in the European Union (Facultad de Derecho Universidad Complutense), 110–​111. 31 Another minority-​protection approach is that of Austria, where a supermajority of two thirds of parliamentary members is required for Austrian approval of the use of a passerelle procedure under the Lisbon Treaty. 32 Declaration No. 51 by the Kingdom of Belgium on National Parliaments (annexed to the Final Act of the 2007 Lisbon intergovernmental conference). (Emphasis added.)

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33 As a view founded on a separation of powers model might lead us to believe. See regarding the separation of powers, E. Carolan, The New Separation of Powers (Oxford University Press, Oxford, 2009), Chapter 2. 34 See K. Auel, “Democratic Accountability and National Parliaments” (2007) 13 European Law Journal 487 at 500–​501. 35 Ibid. 36 E.g., those advocated by Mezey and Norton (who focus on the policy-​making powers of legislatures including such factors as their ability to veto or modify policy proposals). (See further A. Maurer, “National Parliaments in the Architecture of Europe after the Constitutional Treaty” in G. Barrett (ed.), National Parliaments and the European Union –​ the Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008) 47 at 66.) Kiiver observes that notions of strength and weakness “imply an adversarial relation between government, on the one hand, and a unitary parliament, on the other hand, which may not be warranted in a parliamentary system”. (See Kiiver, The National Parliaments in the European Union at 61.) 37 M. Gallagher, “The Oireachtas”, Chapter 7 in J. Coakley and M. Gallagher, Politics in the Republic of Ireland (fifth edition), 198 at 203. 38 See evidence given on Danish system to the Joint Oireachtas Sub-​Committee on Ireland’s Future in the EU on 21 October 2008 by Mr. Svend Auken, a member of the European Affairs Committee of the Danish Parliament. See also J. Ørstrøm Møller, “Danish EC Decision-​Making: An Insider’s View” in (1983) 21 Journal of Common Market Studies 245 at 254. See more generally, regarding Nordic parliaments, T. Raunio and M. Wiberg, “Too Little, Too Late? Comparing the Engagement of Nordic Parliaments in European Union Matters”, in G. Barrett (ed.), National Parliaments and the European Union at 379. 39 Weber-​Panariello, Nationale Parlamente in der Europäischen Union, cited in this respect by Kiiver, The National Parliaments in the European Union at 66. 40 See regarding the Austrian parliament, J. Pollak and P. Slominski, “Influencing EU Politics? The Case of the Austrian Parliament” (2003) 41 JCMS 707, G. Falkner, “How Pervasive are Euro-​Politics? Effects of EU Membership on a New Member State” (2000) 38 JCMS 223 and Auel, “Democratic Accountability and National Parliaments” at 493. 41 This has played a key role in how the Austrian parliament operates the constitutionally-​ ordained mandate system which exists in that country’s legal order (Ibid.) Contrast the Danish mandate system, as to which see the authorities cited in note 38 in this chapter. 42 Slovenia’s inclusion in this list is capable of being disputed. Its Constitutional Court has characterised the Slovenian parliament as incompletely bicameral. (See decision U-​I-​ 295/​07–​8 of 22 October 2008.) (See generally N. Borak and B. Borak, “Institutional Setting for the New Independent State” in M. Mrak, M. Rojek and C. Silva-​Jáuregui (eds.), Slovenia –​fromYugoslavia to the European Union Po avtorjih Mojmir Mrak,Matija Rojec (2004, World Bank, Washington), 53 at 56.) 43 Article 18.1 of Ireland’s Constitution provides that it “shall be composed of sixty members, of whom eleven shall be nominated members and forty-​nine shall be elected members”.

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44 See T. Raunio, “Holding Governments Accountable in European Affairs:  Explaining Cross-​National Variation” (2005) 11 JLS 319 at 332. 45 Ibid., and note in particular in this regard the authorities cited by Raunio at p. 333, n. 50 thereof. 46 See text at note 28 in this chapter. 47 As opposed to reviewing draft laws for breaches of subsidiarity (regarding which see Protocol (No. 2) on the application of the principles of subsidiarity and proportionality seen already in Chapter 1). 48 See Articles 1 and 2 to Protocol (No. 1) on the Role of National Parliaments in the EU annexed at Lisbon to the TEU, to the TFEU and to the Euratom Treaty. 49 Norton has argued that “the inability [of national parliaments] to play a significant role is constitutional and, to a lesser extent, procedural. The unwillingness is essentially ideological and cultural.” (See P. Norton, “Conclusion: Addressing the Democratic Deficit” in P. Norton, National Parliaments and the European Union (Frank Cass, London, 1996) at 186 to 191.) 50 See Auken, cited, n. 38. 51 See evidence presented by Kiiver, The National Parliaments in the European Union at 68. 52 This was to ensure the German Länder would be heard in relation to European affairs. See A. Maurer “National Parliaments in the Architecture of Europe After the Constitutional Treaty” in G. Barrett (ed.), National Parliaments and the European Union, 47 at 49. 53 See generally for up-​to-​date information in this regard, COSAC, “Size and Composition of the Committees on European Affairs of the EU National Parliaments”, available online at www.cosac.eu/​national-​parliament-​european-​c/​ (accessed on 12 May 2017). 54 Finland’s Grand Committee was actually founded in 1906 but only took on its present EU-​related functions in 1994. (Ibid.) Ireland’s Joint Oireachtas Committee on European Affairs was formally created in 1995. However, it seems more realistic to date the origins of the European Affairs Committee back to the foundation of the Joint Committee on the Secondary Legislation of the European Communities in 1973. (See in more detail Chapter 3 of this book.) 55 Of the six founding member states, Luxembourg alone is unicameral. 56 There were by the end of the 1970s, nine member states in the then European Communities. Seven of these (Belgium, France, Germany, Ireland, Italy, the Netherlands and the United Kingdom) have bicameral legislatures. Two of them (Denmark and Luxembourg) have unicameral parliaments. Note that in some bicameral states, such as Ireland, accountability and scrutiny functions were entrusted to a joint committee of both Houses. 57 There were by the end of the 1980s twelve member states, Greece having acceded in 1981, Spain and Portugal in 1986. Spain has a bicameral parliament. Greece and Portugal have unicameral legislatures. Note that this figure of sixteen includes Germany’s Unterausschuss des Auswärtigen Ausschusses für Fragen der Europäischen Gemeinschaften, which technically, however, was a mere sub-​committee of the Foreign Affairs Committee of the Bundestag. The establishment of a full European affairs committee, the Ausschuss für die Angelegenheiten der Europäischen Union occurred in 1991.

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58 This amounted to four such committees in total: only Austria created one for each of its two Houses of parliament. The Finnish and Swedish parliaments are unicameral. 59 Greece is the sole exception. It joined the Communities in 1981, creating its European affairs committee only in 1990. 60 It is also usually praised as the most successful committee (usually followed in this regard by the Finnish Eduskunta. (See e.g., Maurer “National Parliaments in the Architecture of Europe After the Constitutional Treaty”, 68.) although it is clear that this view is not universally shared. See in this regard, B. Hoetjes, “The Parliament of the Netherlands and the European Union:  Early Starter, Slow Mover” in A.  Maurer and W.  Wessels, National Parliaments on their Ways to Europe: Losers or Latecomers (Nomos, Baden-​Baden, 2001), 337 at 349 on the unfavourable attitudes expressed in the Dutch parliament to the Danish approach. See more generally on the Danish approach the authorities cited in note 38 in this chapter. Note also that unlike the Danish parliament’s powers, those of the Austrian parliament are expressly anchored in the Constitution. 61 See Kiiver, The National Parliaments in the European Union at 48 to 50. 62 Raunio, “Holding Governments Accountable in European Affairs” at 321. 63 The directly-​elected and dominant “second chamber” of the Dutch parliament. See the discussion in Hoetjes, “The Parliament of the Netherlands and the European Union” at 349. 64 This has certainly been the experience in Ireland. See in this regard the remarks of John Perry TD to the Oireachtas Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs regarding the sub-​optimal standard of scrutiny work which in his experience was carried out by sectoral committees in relation to European matters, 5 May 2010. Along similar lines, Dominic Hannigan TD (then Chairman of the Joint Oireachtas Committee on EU Affairs) suggested to a House of Lords Committee that the mainstreaming of EUd scrutiny in the Oireachtas (i.e., in the lifetime of the 31st Dáil) had been effective, but “may have gone a bit too far” and that there needed to be effective feedback from the sectoral committees to the EU Affairs Committee. (See House of Lords The Role of National Parliaments in the European Union (9th Report of the 2013–​14 Session, HL Paper 151) at 13 thereof. Note that the Dutch experience appears to have been similar. See the reported observations of its own activities by the General Committee on EU affairs of the Tweede Kamer that without these activities, “the necessary attention for EU affairs in the other standing committees would virtually disappear”. (Quoted in Hoetjes, “The Parliament of the Netherlands and the European Union” at 349.) 65 See Kiiver, The National Parliaments in the European Union at 48–​51. 66 See Austrian parliament website at https://​www.parlament.gv.at/​PAKT/​EU/​ (accessed on 12 May 2017). 67 Note that there is some overlap between the membership of the sub-​committees and that of the Select Committee itself. 68 See the comments attributed to the former Chair of the Scrutiny Committee, John Perry TD, cited, n. 65. 69 See Folketinget, The Folketing’s European Affairs Committee at 7.

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70 Kiiver, The National Parliaments in the European Union at 49. 71 This is the Riksdag’s Advisory Committee on European Affairs. 72 Raunio and Wiberg, “Too Little, Too Late?” at 386. 73 See generally Parliament of Finland, Parliamentary Scrutiny of European Union Matters in Finland. 74 Ibid., 6. 75 See text at note 40 in this chapter.

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3 A slow adaptor? Eliciting a response from the Irish parliament to European integration

Adjusting to Europe Within a relatively short period from the date of Ireland’s joining the EEC in 1973, it became clear that major structural change to the Communities would be needed if the EEC were ever to fulfil its potential. Successive Treaty changes were effected by the Single European Act (1986) and the Treaties of Maastricht (1992), Amsterdam (1997), Nice (2001) and Lisbon (2007), facilitating successive enlargements of a six-​member organisation to today’s twenty-​eight member giant and the gradual deepening of largely economically-​focused Communities to a Union with much broader political aims and objectives.1 At national level, adjustments have also been needed, not merely because the evolving nature of integration requires a correspondingly flexible response, but also because some of the original challenges stemming from Ireland’s membership were not initially adequately confronted –​including as regards Oireachtas involvement in EU matters. The Oireachtas role in European affairs is multifaceted. It has for example a communication aspect, involving both transmitting the views of the electorate to European institutions, and, conversely, informing the electorate of what is happening at EU level. It also includes imposing democratic accountability on the executive concerning its EU-​level activities level. How well the Oireachtas has exercised influence over the Government in EU matters, particularly insofar as concerns ministers in Council and Taoisigh in the European Council, is a topic which both this chapter and Chapter 4 address. Of the EU’s political institutions, the Council and European Council arguably most require the imposition of accountability by national parliaments.The European Parliament is answerable

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to voters in direct elections. Commission room for manoeuvre is limited by its need for member state cooperation and, increasingly,2 it also finds itself answering to the European Parliament.3 The European Council and the Council are subject to no comparable collective control. Individual members are subject only to those controls imposed by national political structures.

The Oireachtas and the executive: a context of dominance It is helpful to frame the relationship between the Irish legislature and executive in EU affairs in the broader context of the relationship between these two branches of government. Overall, to quote Tonra, “the Oireachtas has not had a strong record… Despite formal constitutional provisions which indicate otherwise, the political reality is that the Oireachtas is effectively the servant of the executive rather than its master.”4 Although there have been some recent reforms favouring the Oireachtas, particularly during the 31st and 32nd Dáil periods, the situation has remained largely one of executive dominance.5 It is important to have realistic expectations:  executive determination of the legislature’s agenda is the norm in modern parliamentary democracies. Set against classical liberal theory, “practice right across Europe can seem rather disappointing, because it appears that once a government gets into office it can go its own way largely unchecked by parliament”.6 Nonetheless, the relationship between parliament and executive in Ireland has for long been particularly weighted in the executive’s favour,7 and for many reasons, including: the combination of powerful party whips, a tradition of comparatively strong majority-​ holding governments (single and multi-​party), an electoral system which is seen to reward assiduous constituency work over legislative activity and, overall, a comparatively weak committee structure, has traditionally undermined the Oireachtas’ capacity to hold the executive to account.8

To quote O’Halpin, “party discipline, the pressures of constituency business, and its own conventions, timetable and procedures combine to make the Oireachtas appear a rather lackadaisical institution”.9 Some of the reasons for modern executive dominance merit reflection.10 By no means all are peculiar to Ireland.

The requirement of full-​time, professional and focused government One general reason for executive dominance over legislatures is that the ever-​ increasing complexity of modern life requires a standard of full-​time, professional

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and focused government that only entities like national executives are capable of meeting. In sum: Government business has become much more complex, and it is more difficult for all but those directly and continuously involved to monitor its work. The level of specialisation and expertise required is such that everyone else, including the backbench member of parliament, is effectively an amateur in the policy-​making process.11

This need for an adequately professional and expert approach may partly explain why the Department of Foreign Affairs has reputedly opposed the idea of the introduction of a mandate system for the Oireachtas in European affairs,12 an idea which would obviously result in greatly increased executive answerability to the Oireachtas.

The divided attention of parliamentarians Executive dominance of the Oireachtas is facilitated by the attention of parliamentarians being constantly divided.13 TDs carry out legislative and policy work on a part-​time basis, balancing it with engagement in constituency work at the intensive level required to secure re-​election. The need for constituency work frequently wins out. Thus the standard of debate in committees often reflects the fact that many parliamentarians attend with little or no preparation or thought given to the topic under discussion. The emphasis on constituency work is also reflected in limited sittings. In 2015, the Seanad sat for only 106 days, and the Dáil for only 118.14 Moreover, as elections approach in the second half of a parliamentary term, parliamentarians’ focus on policy and legislative work declines,15 resulting, e.g., in worsened attendance at Oireachtas committees. Even within the realm of policy work, the attention of parliamentarians can be divided. An Oireachtas member will frequently be a member of more than one committee. Insufficient time may thus be available to build up an expertise in one policy area, or to attend committee meetings in their entirety, even given a willingness to do so. In early 2011, the Secretariat of the Management Advisory Committee of the Houses proposed a policy of “one member, one Committee” should operate in order “to increase the capacity of individual members to contribute more fully to Committee business and to focus their attention on areas of specialist expertise”. This did not occur (and might have overstretched the capacity of the Oireachtas, if it had).16 Until the end of the 31st Dáil period, the efficacy of individual parliamentarians was also affected by committee meetings being scheduled simultaneously

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with plenary debates in the Houses. Oireachtas committee members frequently left committee rooms in which debates were ongoing in order to speak in one or other House.

The particularly powerful nature of the Irish executive Rendering the Irish executive politically accountable is particularly challenging, in that executive power is particularly concentrated.17 Reasons include the non-​ federal nature of the Irish state, and the fact that in Ireland strong institutions of local government have failed to develop. The result is that the Oireachtas, in dealing with the executive, is already working with a branch of government with more power concentrated in its hands than is held by its counterparts in other states.

Party politics A further reason for executive dominance is the party political system (a European-​wide phenomenon, although particularly strict in Ireland). No matter what powers are given to national parliaments, no system of challenging Government ministers will function properly in the absence of a will on the part of TDs to apply it. The party political system deprives Government TDs of much incentive to challenge the executive, with backbench Government members of parliament identifying more closely with their colleagues in the executive than with the institution of which they are members, or with their fellow parliamentarians from Opposition parties.18 To quote Gallagher: When political life is dominated by political parties, as is the case throughout Europe, deputies’ orientation to party is stronger than their orientation to an abstract notion of “parliament”.This is not necessarily a bad thing –​to govern effectively, governments need to be able to rely on their own backbenchers to support them through thick and thin. In Ireland, government backbenchers have proved very reliable indeed.19

This does not make parliamentary accountability impossible. But it should moderate our expectations of it. As noted in Chapter 2, a useful distinction can be drawn for such purposes between “monitoring scrutiny” of governmental action on the one hand, and “political scrutiny” on the other, where “monitoring scrutiny” means demanding information on actions which have been carried out by government, and on the context of these actions. Its aim is to reduce information asymmetries20 and can be carried out even by government party parliamentarians. “Political scrutiny”, in contrast, involves the “assessment of, and political

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judgement on, the appropriateness of the government’s decision and the respective outcome of European negotiations and, thus, ‘whether they exercised [their] powers in ways that the political bodies to whom they are accountable –​such as parliament or the electorate –​can endorse.’ ” Establishing this kind of accountability is normally the role of opposition parties.21

Ireland’s Westminster-​style parliamentary system Ireland has a Westminster model parliament. The so-​called “efficient secret” of this model is the lack of a separation between executive and legislature,22 which lightens parliamentary control over the executive. The “fusion” of government and parliament which results, “with virtually all ministers simultaneously being TDs, greatly affects the way in which TDs, especially government backbenchers, see their role”.23 As Gallagher observes: the Dáil does not challenge the government, not because it does not meet for a sufficient number of days or because its procedures are inadequate, but because backbench government TDs want to back the government –​indeed ultimately to become members of it –​and not to harass it. Giving government TDs more teeth will not alter the role of the Dáil if these TDs do not wish to bite the government.24

The bypassing of the Oireachtas Another reason for relative Oireachtas weakness is that in policy areas integrated at European level, the Oireachtas finds itself “outside the loop” of decision-​ making,25 and enjoys at most an indirect input –​a side effect of the EU’s executive federalism.

The conservative nature of parliaments A further reason for weakness has been parliaments’ tendency towards conservatism in the organisation of their affairs.A self-​interested unwillingness on the part of the executive to countenance reform also plays a role here. In Ireland, for example, although Seanad reform was clearly badly needed for many years, with no fewer than eleven reports down through the years suggesting methodologies,26 reform never occurred. Subsequently, the 2011–​16 Coalition Government sought to abolish the Seanad entirely. Defeated in referendum,27 the Government commissioned a further report:  the Report of the Working Group On Seanad Reform 2015, which seems likely to become the latest set of proposals to languish unimplemented.

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The construction of an adequately functioning committee system began late and has proceeded slowly. Moreover, in the field of EU affairs, the Oireachtas, unlike many other parliaments in the EU, has failed to obtain either the power to impose a scrutiny reserve on European proposals or a Danish-​style mandate.28

Resources An imbalance in resources of financial, administrative, staffing, information and research resources for long ensured inequality in the relationship between executive and legislature. A 2010 international benchmarking report revealed that, of fifteen surveyed parliaments, the Oireachtas was spending less per member of parliament than all but one.29 A comparison of six parliaments put the Oireachtas in last place in the ratio of staff to parliamentarians.30 The effect of budgetary cuts consequent on the 2008–​13 economic crisis was also considerable. Staff numbers fell each year from 2008 (when 429 full-​time-​equivalent civil servants of the State and 54 State industrial staff were employed) until 2013 (when 398 full-​time-​equivalent civil servants and 48 State industrial staff were employed). Staff numbers have risen in subsequent years, however. The 2015 figure was 418 full-​time-​equivalent staff (plus 40 State industrial staff employed in catering and printing work).31 To this must be added considerable numbers of other personnel. By 2015, under a Scheme for Secretarial Assistance, 400 full-​ time equivalent posts were created and financed by the Houses of the Oireachtas Commission, as were 12 staff for office holders.32 Overall, the resources available to the Oireachtas, including the financing of the Committee system, have improved since the Houses of the Oireachtas Commission was set up in 2003. Nonetheless, “it remains the case that the Oireachtas is at the mercy of the Minister for Finance and resources can be as easily withdrawn as they are given” –​something clearly demonstrated with the onset of economic crisis.33 Even at times when resources have been provided, they have not always been used to enhance the legislative and policy functions of the Oireachtas. As Martin has pointed out, in recent years the secretarial support available to each TD has been supplemented by a parliamentary assistant for each deputy… In theory, this should greatly enhance the ability of TDs to prepare for committee work; however it is up to each deputy to decide who to appoint and the type of work the assistant undertakes. Some deputies have hired graduates to assist with research and policy development, while others have located the parliamentary assistant in their constituency office to assist with constituency matters.34

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The historical context: the relationship between the legislature and the executive in Ireland since independence Article 28 of the 1937 Constitution declared that the State’s executive power shall (subject to the Constitution’s provisions) be exercised by or on the authority of the Government.35 It then requires that “the Government shall be responsible to Dáil Éireann”.36 The reality, however, is very different to the impression created by these words which, when they were written, were misleading, and constituted a mere genuflection to a direction of a constitutional theory already well out of date in 1937. Chubb has observed of this gap between words and fact, that the explanation for this apparent, albeit mild, political schizophrenia is not difficult to discern. A constitution is a legal document expressing mainly legal relationships. It is usually written in conventional, even traditional, language, embodying the concepts of accepted political and constitutional theory, in this case of nineteenth-​century British liberalism. The politicians subscribed to these ideas in much the same way as many people subscribe to their religion, their behaviour from Monday to Saturday often reflecting a bending to the pressures and exigencies of everyday life.37

Some historical contextualisation of this situation is appropriate.

Nineteenth-​century liberalism and the twentieth-​century Westminster model Part of the nineteenth-​century liberal concept of government is the principle of the supremacy of parliament: the idea that parliament holds the ultimate power to make laws and control the action of the executive.38 A later refinement was that the people hold ultimate power but that this power, between elections, is delegated to parliament.39 The idea here is of a chain of command reaching downwards from the people to the parliament and onto the government and the administration. Such ideas were reflected in the wording of Ireland’s 1922 and 1937 Constitutions. By the beginning of the twentieth century, however, it was clear that this was no longer an accurate description of the Westminster model. Hence Gallagher’s observation that the Constitution, by assigning law-​making powers exclusively to the Oireachtas… reflects one of the central tenets of classical liberal democratic theory: the legislature (parliament) makes laws and the executive (government) carries them out. In this vision, the government is merely the striking arm of parliament, carrying out parliament’s will whether it likes it or not. This is obviously not the case, and it is more

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common to find the view expressed that parliament, in Ireland even more than in many other countries, has come to be a mere “glorified rubber stamp”… for whatever proposals government puts before it. It is a slight, but only a very slight exaggeration to say that all legislation passed by the Dáil emanates from the government, and that all legislation proposed by the government is passed by the Dáil.40

By 1922, the liberal ideal had long been abandoned, and the system still used today (on both sides of the Irish Sea) prevailed:  namely, governments being produced as the consequence of general elections (the results of which are registered by the composition of parliament) and subsequently ruling with the assistance of a professional civil service; governments being led by a prime minister or Taoiseach who is the leader of the party (or coalition of parties) that has won the general election; maintenance of such governments in power in both houses by parliamentarians who are party loyalists; some degree of collective and individual answerability of ministers to (and hence influence by) parliament but, in practice, because of party loyalty and discipline, and the notion of collective cabinet responsibility, little likelihood of dismissal of the government by parliament in the normal run of events41; government proposals publicly discussed in parliament, but almost invariably passed with concessions made only on details; and political parties outside parliament helping to mobilise the electorate at election time and forming the forum in which political leadership could be attained.42 In contrast to the nineteenth-​century liberal idea of parliaments controlling governments, the early twentieth-​century Westminster approach involved a lesser role for parliament. Indeed that “efficient secret” of the Westminster system has been the effective fusion of the executive and the legislature under control of the former. In this system, the government operates at the critical stage in the public decision-​making process, namely the point at which the needs, desires, ideas and demands of the community, and their reactions to suggestions from politicians, are precisely formulated into proposals for legislation and governmental action. Once formulated, these proposals are very likely to go through. At the next succeeding stage, [parliament] will give them the status of law and thus formally legitimise them, but it will probably not make a positive contribution of major importance to their content. Thus it has been rightly said that parliaments in systems such as this are not so much law-​making as law-​declaring bodies.43

Further increasing the centrality of the executive’s role, the government sits at the confluence of streams of advice and opinion not only from parliament (in this regard, only one voice in many), but also from interest groups, political

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parties and, crucially, expert civil servants. The head of government will also be a party leader and leader of the majority in parliament as well. Such, then, were the features of the parliament–​executive relationship inherited by the new Irish State in 1922.

The impact of the 1922 Constitution The drafters of the first (1922) Constitution of the Irish state began by replicating the structures of early twentieth-​century British government, even while using the language of nineteenth-​century liberalism. Had they done no more, this would have been a straightforward recipe for continued executive dominance. But the drafters harboured genuine intentions to rein in the executive. Thus, they grafted onto British-​style structures a number of institutions which attempted to moderate the power of the new state’s executive. For example, provision was made for referendums to be held on the written demand of two-​fifths of the members of Dáil Eireann or a majority of the members of Seanad Eireann, which would effectively out-​vote the government.44 Provision was made for the initiation, by a minimum number of voters, of proposals for laws or constitutional amendments.45 The governing “Executive Council” –​stipulated, like its modern counterpart, to be responsible to Dáil Eireann –​was constitutionally limited to only five to seven ministers appointed on the nomination of its President (the equivalent of the present-​ day Taoiseach).46 Here again the legislature could flex its muscles, in that the Constitution provided that the number of ministers could be raised to twelve by the addition of so-​called extern ministers “nominated by Dáil Eireann on the recommendation of a Committee of Dáil Eireann chosen by a method to be determined by Dáil Eireann, so as to be impartially representative of Dáil Eireann”.47 Each such minister was individually “responsible to Dáil Eireann alone for the administration of the Department or Departments of which he is the head”. No such minister could be removed from office during his term other than by the Dáil itself, in strictly regulated circumstances designed to avoid executive dominance.48 Moreover, the President was to be appointed on the nomination of the Dáil, and all other ministers appointed with its assent, with the retirement from office of all required if the President ceased to retain the support of a Dáil majority. Nor could the Oireachtas be dissolved on the advice of an Executive Council which had ceased to retain the support of a majority in Dáil Eireann.49 It is interesting to note the expressed intentions of some founders of this state that Westminster-​style party discipline ought not prevail but, instead, that the Oireachtas be a “deliberative assembly in the

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fullest sense of the word” in which each legislative proposal would be “analysed only on its merits” and there be “the maximum of individual liberty for the deputies in the Dáil”.50 Even the choice of electoral system (proportional representation with a single transferable vote and multi-​seat constituencies) “appeared a recipe for a complex multi-​party system in which the parliament would be untameable and strong and the executive consequently rather weak, dependent for further survival on constant appeasement of various parliamentary groupings”.51 Political power was not, however, successfully redistributed between executive and legislature. The political support needed in order to enable this constitutionally-​intended rebalancing simply never appeared. Even the above-​ described rebalancing system had involved a considerable climb-​down on the original, more radical, proposals of the 1922 Constitution’s drafters (who had, for example, envisaged an Executive Council limited to only four members).52 Whatever prospects such plans to empower the legislature might otherwise have possessed died at birth with the emergence of two major post-​Civil War political party blocs competing fiercely for power. Intense party loyalty facilitated executive control. Rigid adherence to party lines meant that discretions constitutionally conferred on the Oireachtas could effectively be exercised by the government (whose members, after all, controlled the dominant political party). Strong executive hegemony over the legislative branch was established, and has largely endured to the present day. Executive decision-​making was ultimately subjected to controls far weaker than those originally intended by the founders of the State. Contrary to the intentions of the 1922 Constitution’s drafters, a more or less textbook Westminster system prevailed.53 Legal rules were soon amended to more accurately reflect this political reality. Thus e.g., extern ministers were eliminated by a combination of constitutional amendments and political practice in 1927. The possibility of voter-​initiated constitutional amendments was ended in 1928. Thus “the ‘un-​British’ institutions were shed within five years, and cabinet government in the British style was firmly established”.54 Over the years, qualities typifying the Westminster model have been exhibited by the Oireachtas in a number of ways,55 e.g., the Government’s ability to rely on the regular support of parliament;56 the Government having its plans approved by parliament without the agreement of the Opposition and without even taking its views into account (beyond having to give them a hearing);57 and in the lack of significance traditionally accorded to committees (in practice, a significant conduit for providing parliamentarians a meaningful role in policy formation).58

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The Oireachtas has not been bereft of powers vis-​à-​vis the executive, particularly as regards the formation and dismissal of governments. On seven occasions,59 the Dáil itself has chosen the government by electing a minority Government (rather than being confined to the Westminster-​type role of a register for votes cast in an election, or of ratifying a pre-​agreed deal by Coalition parties with sufficient seats to form a majority). It has also dismissed two governments, and a further nine resigned rather than face defeat in a vote. But such events are exceptional and indeed arguably ought to be.60 Overall, under the Westminster model, parliament acts as a law-​legitimator rather than a law-​ maker,61 a body which can aspire only to rendering the government accountable, rather than to being a policy-​maker itself.62 The failure of initial attempts to reduce executive dominance was not the consequence of party loyalties being exploited by a cynical executive. Considerable scepticism had always existed regarding the workability of plans to share power between legislature and executive. In consequence, such plans were already considerably diluted by the time the 1922 Constitution was adopted. Post-​1922, the majority of parliamentarians happily acquiesced in consolidating executive powers. Some compulsion (party discipline) was at work, but so too was desire –​ namely, the desire  to avoid empowering the Opposition. The parliamentary majority preferred emasculating parliament to handing some levers of political control to their erstwhile Civil War opponents.

Executive–​legislature relations and the 1937 Constitution Although the coming into force of the 1937 Bunreacht under Eamon de Valera’s Fianna Fáil was obviously an event of seminal constitutional importance, it involved more of the same as regards executive–​legislature relations: the same twentieth-​century Westminster model of government, with a patina of wording included in the Constitution capable of misleading the careless or unwary into thinking that classical liberal theory –​with its idea of parliament as the dominant branch of government –​prevailed. The 1937 Constitution, if anything, entrenched the Westminster model of executive–​legislature relations even more firmly than had previously been the case. Thus e.g., unlike in 1922, no provision was made in the 1937 Constitution for “extern ministers”. Furthermore, the role accorded to the new office of Taoiseach was “to elevate the Taoiseach formally and in practice to the position of a strong British prime minister”.63 An example of this was that the Taoiseach was given the power to terminate the appointment of any Government member.64 Again, the Taoiseach, rather than the cabinet as a whole, was given the power to bring about the Dáil’s dissolution.65

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Executive–​legislature relations in the post-​1937 era66 It is a testament to the durability of the early-​twentieth-​century Westminster model that, eighty years after the adoption of the present Irish Constitution, and notwithstanding many reforms, a fundamental rebalancing of the powers of executive and legislature has nonetheless never occurred. Until recently, even basic improvements in the workings of parliament came about painfully slowly. Writing as late as 1995, O’Halpin could observe that the Oireachtas’s weakness as a parliament has been reflected in the antiquated and cumbersome way in which it has customarily discharged its business. Deputies and senators receive only meagre office accommodation and secretarial support, there are no parliamentary research facilities other than a notoriously underdeveloped library, and there is no money to pay for research assistance. Until the 1980s, when the FitzGerald coalition embarked on a somewhat haphazard experiment in procedural reform, the Oireachtas had nothing akin to a substantial committee system either to deal with draft legislation or to scrutinise Government policy and actions.67

For most of the state’s history, parliamentary reforms tended to come about years, or even decades, after first being proposed.68 Fianna Fáil governments, which held uninterrupted power from 1932 to 1948, tended (like their predecessor governments) to have little interest in sharing power with the Opposition. The party system hardened into a “Fianna Fáil against the rest” mould which was to endure for over fifty years, and notwithstanding two three-​year periods in government between 1948 and 1957, the main opposition parties failed to give Dáil Éireann the means to hold future governments… successfully to account. Indeed, it appears that the inter-​party coalitions were so eager to keep Fianna Fáil out of government that they engaged in the very thing they criticised it for –​closed and unaccountable government.69

The second sixteen-​year period of uninterrupted Fianna Fáil governments may have given the Opposition adequate time to realise that the long-​term disadvantages of a wholly adversarial political system might outweigh its short-​term gains. When in 1973, a Fine Gael–​Labour Coalition led by Liam Cosgrave finally took power, five ad hoc Dáil committees were duly established to consider important legislation. However, this constituted a false dawn. The committees, temporary in nature and with only weak powers, failed to present any real challenge to the government. Overall, “the pre-​1980s committee system was generally acknowledged to be ineffective, with the possible exception of the Public Accounts Committee”.70

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By the early 1980s, however, change was finally in the air. The return to power of Fianna Fáil in 1977, with a massive majority, finally saw Fine Gael align itself with the more long-​standing calls for reform of the much smaller (and therefore even more parliamentarily disadvantaged) Labour Party. In 1983, under the second Fine Gael–​Labour Coalition of Garret FitzGerald, a broad select committee system was introduced facilitating non-​adversarial discussion of various cross-​departmental issues. Seventeen select committees were created, and funding increased.71 The sudden explosion in the number of committees soon emerged to have been “too much, too quickly”,72 however, and the new committees “immediately undermined by their superabundance”.73 The remit of certain committees was too vaguely defined and their correspondence with government activity too inexact, giving rise to “an uncoordinated mish-​mash of committees”74 failing to scrutinise certain executive activities at all.75 This “somewhat haphazard experiment”76 was short-​lived. A Fianna Fáil government led by Charles Haughey came to power in 1987.With its leader’s advocacy of the merits of single-​party government, the select committees of the twenty-​fourth Dáil were not re-​established. Oireachtas committees last only as long as the life of the Oireachtas itself and lapse when an election is called. Up to the beginning of the 1990s, however (in other words, for the first seventy years of the state’s existence) there was no tradition of automatically re-​establishing committees (apart from housekeeping and procedural committees such as the Dáil Standing Committee on Procedure and Privileges). Laffan has observed that “until the reforms of the 1990s, the procedures and practices of the Dáil were more akin to those obtaining in the British Parliament at the foundation of the state”.77 Significant change began from the early 1990s, however. MacCarthaigh has suggested that Fianna Fáil’s failure to secure an overall majority in the snap election called by Charles Haughey in 1989 was a “critical juncture” in the development of Irish parliamentary accountability, on a par with the adoption of the 1922 and 1937 Constitutions. This is because it marked the beginning of an enduring shift to Coalition governments –​ a change which, he argued, would inevitably move Ireland closer to consensual government by introducing other “veto players” (i.e., coalition partners) into the process.78 Progress along the route of more consensual government, if such it was, was slow, however. Nonetheless, there was gradual evolution in the Oireachtas committee system, beginning in the early 1990s.79 After the 1992 election, as the result of negotiations leading to a Fianna Fáil–​Labour coalition government, “the committee system leapt into life again”.80 A  new system of joint committees was introduced. Some such committees (e.g., the Joint Committee on Foreign Affairs) were departmentally aligned. Others (like that on women’s rights) were

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not. As in 1983–​1987, there were arguably too many committees. However, the system was more logically structured than its predecessor in the twenty-​fourth Dáil had been. Significant new powers were also given to these committees by entrusting the heretofore misleadingly-​named “committee stage” of legislation to them instead of to both Houses.81 The new committee system was retained by the so-called Rainbow Coalition of 1994–​97 and by the six subsequent administrations since then. Some reorganisation took place, in particular in 1997, when the Fianna Fáil–​Progressive Democrat Coalition reduced the excessive number and size of the committees, and in 2011, when the number of committees (which had been raised again for reasons of political expediency by the previous regime in 2007) was once again reduced by the new Fine Gael–​Labour Government. By September 2011 (seven months after the February election of the 31st Dáil) eleven joint committees had been set up.82 This required some upward adjustment however –​thus by the end of this Dáil period, the number had risen slightly to thirteen joint committees. Nine shadowed the work of one or more Government departments. Four covered specific subject areas, one of which was EU affairs.83 The committee system introduced in 1992 continues to exist and evolve. It has undoubtedly improved over time (e.g., in terms of its research capacities).84 It has not however proven as effective as might have been hoped, and the system has not yet developed to the point attained in other European democracies, particularly consensus-​model democracies. The programmes of recent coalition governments tend to stress the idea of further strengthening committees. Hence, for example, the 2007 Agreed Programme for Government of the incoming Green Party–​Fianna Fáil coalition government promised that it would “pursue the issue of… strengthening the role of Committees”.85 The programme of the 2011 Fine Gael–​Labour coalition promised to “reduce the number of committees, and give key committees constitutional standing” and stated that “the Dáil needs fewer but stronger committees, resourced properly”.86 Some of the Government’s proposed new approach to committees stalled in October 2011, when the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 (intended to considerably strengthen the Houses’ powers to conduct inquiries) was defeated in referendum.87 However, other innovations, including a more mainstreamed approach to dealing with EU policy issues, were successfully implemented. There are limits to what can be expected of committee reforms.88 Government backbenchers who aspire to promotion are unlikely ever to use committee powers of interrogation too rigorously against party colleagues holding ministerial office. A political system in which re-​election is heavily dependent on

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constituency work is unlikely ever to produce many members with a strong interest in committee work, especially when the media profile of such work is normally negligible. Governments have little selfish interest in strengthening a system which will increase critical scrutiny of their work. Unsurprisingly therefore, fine words in government programmes about strengthening committees have not always been matched by actions. Although the resourcing of the committees has improved, it is still not clear that it is entirely fit for purpose. Overall, Martin has well summarised the position regarding Oireachtas committees to date in the following terms: albeit from the weakest of starting points, Oireachtas committees have evolved significantly since the 1980s. While the trajectory has not always been in the direction of a stronger committee system, the overall trend has clearly been towards establishing a more significant set of parliamentary committees. Nevertheless, it would be misleading to characterise Oireachtas committees as being particularly powerful relative to committee systems in other legislatures. In comparative rankings of the strength of committee systems of national parliaments in thirty-​nine advanced industrial democracies, Ireland comes in mid-​table. While its ranking over time has improved significantly, Irish committees still lag well behind that of many national parliaments in Europe, most especially the committee systems of Scandinavian legislatures.89

O’Halpin has correctly noted that “there is little doubt that committee work has finally won recognition as a central feature of Oireachtas work”.90 However, the relative weakness of the same committee system, combined with the Seanad’s powerlessness, has meant that a major rebalancing of executive and legislature powers has not occurred in Ireland. This country still operates a version of the early twentieth-​century Westminster model, still relatively lightly modified by recent reforms. The context of Oireachtas intervention in European affairs is thus a political system in which, as Chubb observed, the Oireachtas has a comparatively modest role as a policy-​maker, and one which, historically, it has not performed very well.91

Ireland’s accession to the European Communities: the early role of the Oireachtas Introduction: a failure to prepare? In the light of the foregoing, it is unsurprising that the Oireachtas had no serious role in rendering the Government accountable in European matters prior to Ireland’s 1973 accession to the European Communities. Few at the time

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apparently thought matters should be otherwise: two government papers laid before the Houses of the Oireachtas in April 1970, and January 1972 made no reference to the potential impact of membership of the Communities on the Oireachtas (unlike the potential impact on the Constitution, which was discussed).92 The lack of attention paid to the implications for the Oireachtas of impending membership of the Communities contrasted markedly with the pre-​entry situation in many other European countries, e.g. Denmark (which also joined in 1973, and whose legislature had been involving itself in European matters since 1961), and subsequently, Finland, Sweden and Slovenia.93 In the UK, an independent Study of Parliament Group brought out a report in July 1972 on the implications for the Westminster parliament of forthcoming membership,94 but even this muted approach had no counterpart in Ireland. The lengthy accustomisation of the Oireachtas to subservience probably played a role here. Without an agenda-​setting function on other issues, Oireachtas members could hardly expect one in European matters which, moreover, involved highly technical legal and economic issues. The task of setting the national agenda on accession-​related issues was therefore unquestioningly left to the executive.95 The largely uncontroversial nature of Irish membership (reflected in an 83% vote in favour of entry in the 1972 referendum) may also have contributed to this torpor, by ensuring that no political pressure would be put on the government to increase parliamentary powers, given that the government would likely win a referendum on entering the Communities anyway.96

The biannual report system With the adoption of legislation facilitating Irish entry to the Community, a consciousness that the Oireachtas would no longer be the sole legislator finally emerged, resulting in demand for some local parliamentary control.97 A  limited role was created for parliament by the European Communities Act 1972.98 Three aspects merit mention. First, thanks to an amendment inserted in the Seanad debates on the European Communities Act 1972,99 the Government was required under s. 5 of this Act to make a report twice yearly to each House of the Oireachtas on developments in the Communities. Hopes were expressed that “this report should not be confined to noting what has been decided, but should be broad enough to encompass the proposals for further development and the Government attitude to these proposals”.100 In practice, however, s. 5 turned out to be of little value to the Oireachtas. The reports normally arrived late. Almost two decades later, a 1991

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Oireachtas Joint Committee was still complaining of serious delays.101 Nor was time made to debate the reports. In March 1977, a Joint Oireachtas Committee complained that the latest Dáil debate on a report pertaining to Community developments had taken place in July 1975, almost two years earlier, and the latest Seanad debate in March 1976, a full year earlier.102 This situation did not improve over time. The 1991 report observed that debates in the Houses on these reports have been infrequent, tardy and unsatisfactory because pressure of other business has forced debates to be fragmentary. When debates do take place they are diffuse and cursory because of the very comprehensive and broad subject matter of the report.103

Democratic control of the use of ministerial regulations Secondly, S. 4(1) of the Act provided for ministerial regulations, having “statutory effect”, to be adopted to give effect to obligations under the Treaties. However, unless a regulation was confirmed by an Act of the Oireachtas passed within six months of the regulation being made, it would cease to have statutory effect.104 The operation of this system was a fiasco, however. Only one confirming statute, the European Communities (Confirmation of Regulations) Act 1973, was ever adopted. It provided that twenty-​two ministerial regulations listed in a Schedule were thereby confirmed. However, the regulations were simply laid in the Oireachtas library, rather than being sent to individual TDs and senators. The explanatory memorandum to the Bill neither set out the contents of the regulations nor explained their impact. “The debates in both Houses revealed that very few deputies or senators had bothered to look at the complete text of these regulations, and were in fact blindly confirming regulations which had been part of Irish law for the previous six months –​for the purpose of continuing them in force…”105 Unsurprisingly, severe criticism resulted and the Government promised legislation giving the Oireachtas a more positive role.106 The result was the adoption in July 1973 of the European Communities (Amendment) Act 1973, which replaced the above-​described procedure with a new one.107 This was significant because it marked, unbeknownst to its proponents, the end of any serious prospect of regular plenary Oireachtas debates on European issues. As has already been seen, the biannual reports provided for in the 1972 Act failed to give rise to regular debates108 and, as will be seen in the text below, Oireachtas Committee reports on European matters largely suffered the same fate.The 1973 Act also had a positive side, however. In creating this new

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procedure, express provision was made for a Joint Committee on the Secondary Legislation of the European Communities, the germ of the current system of Oireachtas control over the executive in European matters. The new provision introduced a negative check enabling regulations to continue to have statutory force for an unlimited period of time unless annulled by the Oireachtas. The relevant provision now became the following: if the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect…109

Although this system avoided some problems experienced in the operation of the original provision, it also replaced a regular opportunity to discuss European matters on the Oireachtas floor with a Committee-​based procedure. Ultimately, it was to be an even greater failure in ensuring proper democratic surveillance of the implementation of European-​level obligations by means of ministerial regulations than its predecessor system, and a virtual legislative dead letter. On only one occasion (if even that) did a Joint Committee on the Secondary Legislation of the European Communities recommend the annulment of any regulation under this provision.110 Neither did subsequent Oireachtas Committees which inherited this annulment power make any use of it.111 In practice, therefore, the 1973 amending legislation effectively gave the executive a carte blanche to use regulations to implement European law, untroubled by any real fear of Oireachtas intervention. Right up to the present day, adequate democratic control over the use of ministerial regulations to implement EU law has remained conspicuous by its absence.112 In practice, the Courts –​although themselves arguably excessively tolerant of implementation of EU obligations by ministerial regulation–​have imposed greater restraints on their use than the legislature ever has.113

The Joint Committee on the Secondary Legislation of the European Communities The third aspect of the 1973 reforms relating to the Oireachtas was the establishment of the Joint Committee on the Secondary Legislation of the European Communities which, according to the 1973 Act, would operate the annulment procedure. The Joint Committee, which came into being in July 1973, under the newly-​ elected Fine Gael–​Labour coalition, drew its membership of twenty-​five

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from both the Dáil (providing eighteen members) and the Seanad (providing seven). Political parties were represented in proportion to the number of their representatives in each House. MEPs were also entitled to attend the first Committee as ex officio members. Yet in a foretaste of the experience of other European-​related Oireachtas committees and joint committees, in practice MEPs rarely attended, handicapped as they were by difficulties of distance and timing.114 They were later excluded from membership of subsequent Joint Committees, on constitutional grounds.115 However, MEPs with dual mandates, i.e., MEPs who were also members of either House of the Oireachtas, continued to be notified of meetings and could attend and participate without the right to vote. The ending of universal ex officio membership of all Irish MEPs involved formally severing a link with Europe. On the other hand, MEPs had participated in the activities of the Committee only to a very limited extent anyway.116 The constant lapsing of Oireachtas committees at the end of Dáil periods with no guarantee of continuity in their membership even if they were re-​established was termed “a major weakness in the Committee system” by the Joint Committee itself, which criticised delays which occurred in re-​establishing it following general elections.117 However, the Joint Committee at least enjoyed an unusual stability, being re-​established after every election on five further occasions, and surviving twenty years before being replaced by the Committee for Foreign Affairs in 1993. As Table  3.1 indicates, the Joint Committee produced reports in relatively large numbers over the years. The quality of these reports varied, however, and the level of output was erratic. Even the distant approach of elections radically reduced their number,118 a point graphically illustrated by the third Joint Committee which failed to produce a single report in the five months of its existence –​the months leading up to the February 1992 general election. The Joint Committee’s existence permitted the development of some European expertise among its small parliamentary membership. It has additionally been credited with blazing a trail, setting the stage for the introduction of a committee system in the 1980s, and then its later, rationalised, reintroduction in the 1990s. It could thus be claimed that “just as the EU has been part of the modernisation of the Irish economy and society, it has been an element in the reform and modernisation of the Irish parliament”.119 The existence of the Committee also adjusted marginally the almost total imbalance between executive and the legislature, although only in the context of a Community in which executive federalism reinforces governmental prerogatives. The Committee’s terms of reference were also expanded over time.120 But it suffered from major faults.

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Table 3.1.  Production of reports by Joint Oireachtas Committee on the secondary legislation of the European Communities Committee

Years of existence

First Joint Committee Second Joint Committee Third Joint Committee Fourth Joint Committee Fifth Joint Committee Sixth Joint Committee

1973–​77 1977–​81 1981–​82 (five months) 1983–​87 1987–​89 1990–​92

Number of reports produced 59 94 0 36 14 14

First, notwithstanding the broad ambit of the policy areas it was expected to scrutinise and the calibre of its chairpersons (who included the experienced former foreign minister Peter Barry and future Taoiseach Charles Haughey), the Committee’s work “remained essentially technical and obscure, the object of little comment or controversy”.121 The first Committee admitted as much by wishing that its successor “be more concerned than it has been with policy questions and less with technicalities”.122 It blamed its own narrow terms of reference for this problem.123 The second and subsequent Joint Committees were given a somewhat broader remit –​being empowered to consider “such programmes and guidelines prepared by the Commission of the European Communities as a basis for possible legislative action”.124 This facilitated the production of numerous reports on various topics. The Fifth Committee, for example, produced reports on topics as diverse as the implementation of the Directive on product liability; the Council Directive relating to credit, suretyship and legal expenses insurance; the Community trade mark; mortgage credit; and public works and public supply contracts. Worthy although such topics were, there was a clear sense, all through the Committee’s existence of missing the broader picture, and that this was in some measure attributable to the continued narrowness of its remit. In a 1991 report, the Joint Committee referred to difficulties it had faced “when, because of its restrictive Terms of Reference, it was excluded from considering such major issues as GATT and the effects of German unification”. It also complained that, remarkably, its terms of reference might not even allow it to consider the outcome of the Maastricht IGC.125 Small wonder then that its output of reports was described by one commentator as no more than “superficially impressive”.126 The Committee faced other difficulties. It was constantly behind on its work, so that much of its work was retrospective by the time it was published. It thus failed to contribute to pre-​legislative debates at European level.127 A  linked

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challenge was that from the very outset, there was a mismatch between the Committee’s resources and the scale of the tasks expected of it. A dispute over such questions as staffing, back-​up facilities and assistance available to it meant that it was well into 1975 before the first Committee was engaged in anything like a satisfactory work routine.128 Even then, its financial resources and those of its successors remained extremely limited. Moreover, to get its work done, the Committee needed frequent meetings, making correspondingly large demands on members’ time.129 It soon encountered difficulties securing an adequate attendance130  –  which was unsurprising, given the poor electoral reward for such work and the competing demands of constituency work. Securing both resources and attendance became even more difficult when numerous other Oireachtas committees131 were set up in 1983. Research capacity was also lacking. Neither Committee members nor administrative staff had sufficient expertise to deal with the many technical and complex issues encountered.132 The 1991 report produced towards the end of the last Committee’s existence called attention to the need for a revamped committee to have access to legal advice and greater use of consultancy services to enable it to produce in-​depth reports on major issues –​such as the CAP and EMU, plus an adequate financial allocation to enable contact with the Community institutions and the European affairs committees of other member states’ parliaments.133 There was also a disconnect between the work of the Committee and the rest of the Oireachtas, not helped by its procedure of operating through sub-​ committees which met and deliberated in private.134 It was dogged by the esoteric and technical nature of its deliberations, far removed from the normal fare of Irish parliamentarians, for most of whom it was a complete backwater: it is no coincidence that the one member consistently singled out for praise by officials, academics and other observers was a strictly part-​time politician who was a leading expert on European law, the then Senator and [later] President Mary Robinson.135

This disconnect between the Committee and the Oireachtas as a whole manifested itself in the Committee’s failure to have its reports debated in the House. By March, 1977, the 55th report of the first Joint Committee revealed that not one of its previously published reports had been debated by the Oireachtas.136 In 1978, apparently responding to a plea by the first Committee for a definite arrangement for regular debates on Committee reports in each House,137 a facility was introduced enabling subsequent Joint Committees to have their reports debated in either or both Houses if it so requested.138 In the Dáil, this arrangement was an almost complete failure. By 1991, a derisory three Joint

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125

Committee reports had been debated in eighteen years of the Committee’s existence.139 More debates took place in the Seanad but even here, the numbers were not large, and debates were not “regular”, except perhaps in the lifetime of the fourth Joint Committee, during the second Fine Gael–​Labour Coalition led by Garret FitzGerald, when twenty-​five of thirty-​six Joint Committee reports (i.e., 69%) were debated in the Seanad (although only one was debated in the Dáil). This failure by the Oireachtas as a whole to engage meaningfully with the Committee may have partly been the result of the Committee’s narrow remit.140 There was, however enough discussion of important issues in the Committee’s reports to merit far more discussion in the Dáil than actually occurred. To take one somewhat remarkable example, even the (fourth) Committee’s report on the Single European Act was not debated in the Dáil. The lack of debating time allowed for committee reports may have stemmed partly from Government rejection of the idea of governing by consensus. The existence of such attitudes is undeniable. Such a mindset led to the failure to re-​establish the committee structure of the twenty-​fourth Dáil when Charles Haughey came to power in 1987. However, the Oireachtas failure to engage was so enduring that other reasons were likely in play. It may have been partly linked to the culture of the Oireachtas. Across Europe, when it comes to European affairs, “the nature of the relationship between the legislature and the executive depends… on established routines and traditional practices”.141 The habits of a half-​century die hard, and as O’Halpin points out, “the Oireachtas … was permeated with a culture which took the absolute dominance of the executive for granted and which discouraged backbench activism, the pursuit of cross-​party consensus on any issue, and the rigorous investigation of the activities of Government.”142 International studies have also indicated that there is, in any case, a relationship between the general effectiveness of national parliaments and their effectiveness in European affairs. Raunio notes that the literature on explaining cross-​national variation in the level of scrutiny of EU matters suggests that the variation is primarily explained by two factors:  the role of the parliament in the domestic political system, and public and party opinion on European integration. If the parliament is strong independent of integration, and if the parties and/​or the public are divided or sceptical of Europe, then the government is subjected to tighter scrutiny –​and vice versa.143

The general position of the Oireachtas vis-​à-​vis the executive has never been strong and, at this time, the parliament was performing far worse than it is now.

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Table 3.2.  Debates in the Houses of the Oireachtas on Reports of Joint Committees on the secondary legislation of the European Communities from 1973 to 1989a Joint Committee

Years of existence

First Joint Committee Second Joint Committee Third Joint Committee Fourth Joint Committee Fifth Joint Committee

1973–​77

59

0

0

0

1977–​81

94

2

9

11

0

0

0

0

1983–​87

36

1

25

26

1987–​89

14

0

7

7

1981–​82 (five months)

Number of reports produced

Number of reports debated in Dáil

Number of reports debated in Seanad

Number of reports debated in total

 This is derived from information in Joint Committee on the Secondary Legislation of the European Communities Report No. 07 –​Review of the Functions of the Joint Committee on the Secondary Legislation of the European Communities (Stationery Office, Dublin, 1991), Annex 1.  No figures have been published concerning the sixth Committee which existed from 1990 to 1992 although certainly by February 1991 (over fourteen months after the establishment of this Committee no report by it (and it ultimately produced fourteen) had been debated in either House or was on the order paper for debate in the Dáil, and only one paper was on the order paper for debate in the Seanad. (Ibid.)

a

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A slow adaptor?

127

Performing weakly in its other accountability functions, it would perhaps have been more surprising if Oireachtas efforts in the European policy area had been more successful. Finally, an additional reason for the continued lack of general Oireachtas engagement in European affairs was probably the lack of any negative reaction to such non-​involvement from the electorate. Raunio’s observation that in states where public opinion is Eurosceptical, the probability of the government being subjected to tighter scrutiny in EU affairs is pertinent.144 The generally positive public attitude to European integration gave little electoral incentive to Irish government to increase parliamentary involvement. Overall, as Laffan put it in 2001, the generally high levels of support for Ireland’s membership of the EU mean that governments have not had to fight that hard for their EU policies. They can usually rely on an acquiescent parliament and an acquiescent public. The parliament does not see itself as leading the national agenda on EU issues –​that is the business of the executive.145

The initial twenty years of membership (almost half the duration of Ireland’s participation in what is now the EU) have been accurately described as “two decades of endemic neglect of European Community affairs by the national parliament” and the Oireachtas response to Irish membership equally accurately characterised as half-​hearted, inadequate and formalistic.146 European affairs were largely left by the Oireachtas to a Committee which never had a chance of exercising any serious influence over the government.

A temporary interlude: the Foreign Affairs Committee 1993–​95 In 1991, the Joint Committee called for its own replacement by a Joint Committee on European Affairs with broader terms of reference enabling it to examine “macro” issues of integration.147 With the 1991 Danish referendum rejection of the Maastricht Treaty, European integration entered into a more controversial phase where it has remained. This has provided external pressure for Oireachtas reform. The Institute of European Affairs, a think tank which has striven to engage politicians, officials and academics alike in European integration issues was also founded for similar reasons in 1991.148 Change came in 1993, but not in the manner the Joint Committee sought, and not in response (at least directly) to international developments.The negotiations which led to the Albert Reynolds-​led Fianna Fáil–​Labour Coalition proved to be the vital catalyst. In these, Labour demanded and obtained

128

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major reforms to the Committee system.149 Consequently, instead of the Joint Oireachtas Committee on Secondary Legislation being re-​established, a new committee was set up in May 1993 which absorbed its work: the Joint Committee on Foreign Affairs. This was the largest Oireachtas committee. Initially, it had thirty members (twenty-​five TDs and five Senators).150 Several experienced and capable politicians had a role in it, including former foreign minister Brian Lenihan, former finance minister Alan Dukes (both of whom chaired it), Nora Owen and Prionsias de Rossa.151 The new Committee brought with it some innovations. MEPs (including Northern Ireland MEPs) were allowed to attend its proceedings, although not to vote (an option availed of by few, seemingly for logistical reasons, and not by any Unionist MEPs for political reasons).152 The Committee had the power to appoint sub-​committees. This power was used to establish a Sub-​Committee on European Legislation, chaired by former foreign minister Gerry Collins, which was, effectively, a form of re-​establishment of the old Joint Oireachtas Committee on Secondary Legislation. The Committee and its sub-​committees operated more in public than the old Joint Committee whose sub-​committees had deliberated in private. Wisely, the Sub-​Committee began by declining to work its way chronologically through the huge number of instruments left unexamined by the time of its first meeting, choosing instead to concentrate its energies on where it could be useful.153 The Committee had a broader remit than its predecessor: it was to consider “such matters arising from Ireland’s membership of the European Communities and its adherence to the Treaty on EU as the Joint Committee [might] select”.154 It was thus more free to choose what activities it would engage in. It produced seven reports between December 1993 and October 1995.155 European matters featured prominently, with the Committee issuing one report on the EU’s forthcoming “EFTA” enlargement (which formed the basis of a Dáil debate on the topic) and another on EU security and defence.156 The Foreign Affairs Committee suffered from some weaknesses regarding its role in European matters, however. Its creation represented change, but clearly not change radical enough to involve any major increase in the level of accountability of the executive in European affairs, or indeed in the policy-​influencing role of the Oireachtas. There were also clear organisational problems with the Foreign Affairs Committee. First, the idea of dealing with the sheer mass of European legislation and policy-​making as a sub-​category of foreign affairs asked too much of the Committee. There was always going to be enough work under either the foreign affairs or the EU rubric to fill the agenda of any Committee. The work of the Foreign Affairs Committee did not leave it enough time to follow European law

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129

and developments generally.157 Secondly, the Committee’s structure, combining a sub-​committee dealing with EU legislation and a general committee expected to pronounce on European developments, created a risk of functional overlap.158

The establishment of a Joint Committee on European Affairs The John Bruton-​led “Rainbow” Coalition’s 1994 Programme for Government featured proposals designed to deal with these disadvantages. Pursuant to this Programme, the broad European affairs were removed from the responsibility of the Joint Committee on Foreign Affairs In March 1995, a new Oireachtas Joint Committee on European Affairs was established. This new Committee has continued in existence ever since, although renamed the Joint Committee on EU Affairs in 2011.159 The Joint Committee on European Affairs was smaller and was regarded as less prestigious than the Foreign Affairs Committee.160 It had only seventeen members, at least initially161 (eleven TDs and six Senators).The Chair of the Dáil Select Committee on European Affairs chaired it.162 Additionally (i) members of the European Parliament elected from constituencies in Ireland, including Northern Ireland, (ii) members of the Irish delegation to the Parliamentary Assembly of the Council of Europe, and (iii) other Members of the European Parliament (in this case, at the invitation of the Joint Committee or of a sub-​Committee) were entitled to attend meetings of the Joint Committee and its sub-​Committees, and participate in proceedings but not vote.163 It met at least once a fortnight164 and in public unless the Committee itself ordered otherwise.165 According to its terms of reference, the Joint Committee was to: (i) consider such matters arising from Ireland’s membership of the European Communities and its adherence to the Treaty on EU, as it may select, (ii) consider such—​ (I) programmes and guidelines prepared by the Commission of the European Communities as a basis for possible legislative action and such drafts of regulations, directives, decisions, recommendations and opinions of the Council of Ministers proposed by the Commission, (II) acts of the institutions of those Communities, (III) regulations under the European Communities Acts… (IV) other instruments made under statute and necessitated by the obligations of membership of those Communities, as it may select,

130

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(iii) consider such other matters as may be jointly referred to it from time to time by both Houses of the Oireachtas, and (iv) represent the Houses of the Oireachtas at the Conference of European Affairs Committees (COSAC).166 It was also required to report thereon to both Houses of the Oireachtas.167 The Committee could set up sub-​committees, a power used by it to set up a Sub-​Committee on European Scrutiny, which dealt with European Community secondary legislation.168 The Joint Oireachtas Committee on European Affairs had several achievements to its credit. Through its many public meetings and reports, it contributed to a culture of greater openness in European policy matters. As the internet age progressed, this openness increased. Considerable efforts were invested in putting documents, debates, and even videos of its proceedings, up on the internet.169 The Committee also used innovative work methods. For example, it commissioned a high-​profile advisory group to examine the EU’s relations with developing countries.170 It also contributed directly to a significant European debate with its 2006 Contribution to the European Commission Green Paper on a Future Maritime Policy for the EU and its Contribution to the European CommissionWhite Paper on a European Communication Policy.171 The Committee could also focus on important issues, instead of being forced by unsuitable terms of reference –​as had been its predecessor, the Joint Committee on the Secondary Legislation of the Communities –​to concentrate most of its energies in the dry exercise of working through myriad European legislative proposals (a task it happily left to its Scrutiny Sub-​Committee). In 2001, to give a randomly-​chosen example, the Committee held meetings dealing with such subjects as the Treaty of Nice, the introduction of the euro, the European Arrest Warrant, Turkish entry to the EU, asylum, and illegal immigration.172 The Committee’s record was nonetheless far from an unqualified success. It experienced major difficulties. For example, it had for long inadequate administrative and research back-​up to develop independent thinking on European issues.173 A January 2002 report by former Taoiseach, John Bruton, TD, observed that there is much room to improve on the existing process. Apart from procedural change, the European Affairs Committee needs substantially improved in-​house resources if it is to do its job properly. The Committee currently has the assistance of only two and a half people at Executive level.This should be increased to 10 executive level people.174

To compensate for the lack of adequate in-​house expertise, the Committee had recourse to consultants for scruntiny work for a number of years. This was not an unqualified success however, at least partly because of the manner of use made of the output of these consultants. According to the 2002 report,

131

A slow adaptor?

131

the Joint Committee on European Affairs, which meets every week, receives reports from a firm of private consultants on draft directives and regulations proposed by the Commission to the Council. The consultants summarise the content and attempt to indicate the ones that have a locally important political content that would merit the attention of the Committee. These reports have been considered by the Committee over the past four years.The Committee has decided to go further. It tabled the reports by the consultants before the Dáil in 1999 and 2000, but did not single out any particular proposals as being of special concern, and did not make any particular recommendations. None of these reports have been debated by the Dáil. There is no formalised reporting-​back arrangement by Government to the Committee, so it is impossible to say what influence, if any, the Committee’s reports have had on subsequent Government action at the Council of Ministers. Subsequently, the Committee asked Ministers to supply them with a comprehensive tabulation of proposals currently before the Council of Ministers. While a great deal of information was supplied, this was not differentiated on grounds of political sensitivity and did not provide the Committee with the focused and prioritised information it needs to conduct enquiries that would have real relevance and effect. It is understood that the government is considering proposing improvements to this process, but these have not yet been made public.175

The number of ministerial appearances before the Committee was never either (a) sufficiently systematic or (b) at a level sufficient for real accountability to be imposed on the executive in relation to its conduct of European affairs. From 2002, however, a sustained rise in the number of ministerial appearances before the Committee occurred. This development, like many other contemporaneous changes had much to do with the June 2001 defeat of the Nice Treaty referendum. Table 3.3.  Visits by Ministers and Ministers of State at the Joint Oireachtas Committee on European Affairsa Year

Number of ministerial appearances

1995 2000 2001 2002 2004 2005 2006

8 5 3 12 13 12 9

 The information in this table was obtained from the annual reports of the Joint Committee on European Affairs. A visit, as occasionally occurred, by a minister of state and a minister to the same session has been counted as two visits. A visit by the Taoiseach to the Committee has also been deemed a ministerial visit. No information is to be found in these reports on years not included in this table.

a

132

132

National parliaments in the European Union

The June 2001 Nice Treaty referendum: its impact on the role of the Oireachtas in European affairs The shock defeat of the first Nice Treaty referendum campaign in June 2001 resulted in significant changes to the Oireachtas role in European matters. It was ironic that the ratification of the Nice Treaty supplied the flashpoint on this issue, since the actual content of the Treaty of Nice had little if anything to do with it. Nonetheless, the ratification process of the Nice Treaty provided an opportunity for the issue to be raised, which it was in a May 2001 article in the Irish Times by a former Attorney General, John Rogers, in which he announced his personal preparedness to vote against enabling ratification of the Treaty of Nice in the then forthcoming referendum.176 Those of Rogers’ arguments which were based on the substantive text of the Nice Treaty produced no substantive reaction. The Treaty would later be ratified with the relevant provisions still in place.177 But Rogers’ objections to the fact that the State had not “sought to adjust its domestic institutions and constitutional arrangements” and that “the Oireachtas has been entirely sidelined in the context of legislation emerging from the institutions of the Community” struck an undeniable chord. After the referendum defeat, the Government felt compelled to defuse the issue of the legislature’s limited role in European affairs before putting a constitutional referendum before the electorate again in October 2002. A revised system of scrutiny and oversight was introduced by the Fianna Fáil-​ Progressive Democrat Government in Summer, 2002. This system was first installed informally, then given a legislative basis by enacting the European Union (Scrutiny) Act 2002. Because it was faced with the prospect of a further referendum on the Nice Treaty, the Government strove for maximised consensus concerning this measure. The basic structure of the compromise forged as a result has endured to the present. The reformed Oireachtas role in European affairs introduced at this time has two aspects to it.178 In the first place, more systematic review of EU legislative proposals was introduced. Hence s. 2(1) of the 2002 Act provided that as soon as practicable after a proposed measure is presented by the Commission of the European Communities or initiated by a Member State, as the case may be, the Minister shall cause a copy of the text concerned to be laid before each House of the Oireachtas together with a statement of the Minister outlining the content, purpose and likely implications for Ireland of the proposed measure and including such other information as he or she considers appropriate.

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A slow adaptor?

133

In practice, this translated into the introduction of the following regime: the Government forwards to the European Affairs Committee all legislative proposals (across all three pillars of the Union), together with information notes outlining the purpose, significance and implications of the texts presented. The Sub-​Committee179 then conducts a preliminary survey of the various proposals, with a view to prioritising them. Prioritisation means making a “judgment-​call” about which proposals are most significant in terms of policy, in order to ensure that adequate time and attention can be devoted to these. Proposals which have been identified for further scrutiny are then referred to the relevant sectoral committees to be considered in greater detail.180

The new system represented significant, but also carefully restricted, change. The effect of a recommendation by the European Affairs Committee or by any other Committee under the 2002 Act was limited. The relevant Government minister was obliged merely to “have regard to any recommendations made to him or her from time to time… in relation to a proposed measure”.181 No UK-​style scrutiny reserve was introduced. Furthermore, even the obligation to “have regard” was subjected to exceptions. It applied neither “where there [was] insufficient time for the carrying out of the procedures aforesaid and the performance of the functions of the Houses of the Oireachtas”182 or “to a proposed measure which, in the opinion of the Minister, [was] confidential”.183 The second reform to Oireachtas oversight was left to practice rather than law, and remains even now unsupported by legislative provision. Government ministers, or ministers of state, were henceforth to make themselves available (in particular before meetings of the Council of Ministers and the European Council), for discussions with the EU Committee or the relevant sectoral committee, as appropriate (a system, one may note, very distant from a mandate system along Danish lines). The Government at the time of the 2002 Act’s adoption seemingly suggested that ministers should normally be requested to appear before the relevant sectoral committee in the week before the relevant meeting of the Council.184 There is no evidence this suggestion was acted upon by any but a tiny minority of Government ministers.185 A final element of the post-​2002 scrutiny or overview process was that s. 2(5) of the 2002 Act required that every Government minister report not less than twice yearly to each House in relation to measures, proposed measures and other EU developments in relation to which the minister performed functions. The limited success of this requirement is one topic examined in Chapter 4.

134

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National parliaments in the European Union

Notes 1 This is not to forget Euratom and the (now-​expired) European Coal and Steel Community Treaty. The key community from 1958 on, however, was the European Economic Community (from 1993, the European Community). When the Lisbon Treaty entered into force in December 2009, this Community effectively merged with the EU to form a new EU. 2 See in this regard, J.-​P. Jacqué, “The Principle Of Institutional Balance” (2004) 41 CMLRev 383, and see Article 17(7) TEU regarding the Commission appointment procedure. 3 It requires in any case a measure of political independence. See generally, E. Gallagher and J.Temple Lang, “What Sort of European Commission Does the EU Need?” Challenge Europe, Issue 7, 14 February 2002. 4 B.Tonra, “Democratic Oversight over the Irish Government in the Field of the Common Foreign and Security Policy” in G. Barrett (ed.), National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008), 243 at 244. 5 Regarding the historical dominance of the executive, see now C. Lynch, E. O’Malley, T. Reidy, D. Farrell and J. Suiter, “Dáil Reforms Since 2011: Pathway to Power for the ‘Puny’ Parliament?” (2017) 65 Administration 37 at 39-46. See regarding the effects of recent reforms, the same article at 50–56. 6 M. Gallagher, “The Oireachtas” in J. Coakley and M. Gallagher (eds.) Politics in the Republic of Ireland (fifth edition, Routledge/​PSAI, London, 2010), 198 at 201. Emphasis added. 7 See further A. Ward, “Parliamentary Procedures and the Machinery of Government in Ireland” (1974) 4 Irish University Review 222 at 241; D. Dinan, “Constitution and Parliament” in B. Girvin and R. Sturm (eds.), Politics and Society in Contemporary Ireland (Gower, Aldershot, 1986), 71 at 71 and B. Chubb, The Government and Politics of Ireland (third edition, Longman, Harlow, 1992) at 189, all cited in Gallagher, “The Oireachtas” at 201. 8 Tonra, “Democratic Oversight over the Irish Government in the Field of the Common Foreign and Security Policy”. Tonra was speaking in the context of foreign policy, but his observations also apply with considerable force outside that particular context. 9 E. O’Halpin, “Irish Parliamentary Culture and the European Union: Formalities to be Observed” in P. Norton (ed.) National Parliaments and the European Union (Frank Cass, London, 1996) 124 at 125. 10 See more generally, Gallagher, “The Oireachtas” at 223. 11 Gallagher, “The Oireachtas” at 223–​224. 12 Interview with then Minister of State for European Affairs, Lucinda Creighton TD, 13 September 2013. See also in this regard views expressed by then Minister for Foreign Affairs, Micheál Martin TD, to Meeting of Oireachtas Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs on 19 May 2010 in which he expressed opposition to the idea of the introduction even of a scrutiny reserve system. Although two former chairpersons of Oireachtas committees which had recommended a scrutiny reserve

135

A slow adaptor?

13 14

15 16

17 18 19 20 21 22

23 24 25

26

135

system subsequently became Ministers of State for European Affairs (Lucinda Creighton TD (2011–​13) and Paschal Donohue TD (2013–​14)), no such system was introduced. See also Gallagher, “The Oireachtas” at 224–​225. See Houses of the Oireachtas Commission Annual Report 2015, 18. This nonetheless represents some increase on earlier years. In 2010, for example, the Seanad sat for 97 days and the Dáil for 100. (See Houses of the Oireachtas Commission Annual Report 2010, 22 and 26.) Interview with member of European Affairs Committee, 5 May 2010. For a stout defence of the need for clientelist politics, see J. McGuinness and N. Nunn, The House AlwaysWins (Gill and Macmillan, Dublin, 2010), Chapter 6. Houses of the Oireachtas Commission Annual Report 2010. Overlapping membership has persisted beyond the existence of the 31st Dáil. Note e.g., the presently overlapping membership of the Joint Committee on Foreign Affairs and Trade, and Defence and the Joint Committee on EU Affairs. B. Laffan, “The Parliament of Ireland:  A Passive Adapter Coming in from the Cold” in A. Maurer and W. Wessels (eds.) National Parliaments on their Ways to Europe: Losers or Latecomers (Nomos, Baden-​Baden, 2001) 251 at 252. See also Gallagher, “The Oireachtas” at 225. Ibid. Auel describes this as being “of particular importance in European policy making, as national parliaments, or, more specifically, the majority parties, are not directly involved in decision making at the European level”. See generally, K. Auel, “Democratic Accountability and National Parliaments  –​ Re-​Defining the Impact of Parliamentary Scrutiny in EU Affairs” (2007) 13 ELJ 487 at 500. Hence the remark by Martin that “as in many other legislatures operating without separation of powers (and particularly those that follow the Westminster model of parliamentary democracy…) it is the government rather than the parliament that effectively shapes legislation”. (See S. Martin, “The Committee System” in M. MacCarthaigh and M. Manning (eds.), The Houses of the Oireachtas: Parliament in Ireland (2010, Institute of Public Administration, Dublin), 285 at 294.) Gallagher, “The Oireachtas” at 225. Ibid. The outcome of social partnership (now at least temporarily defunct) also led to agreements setting out an extensive, detailed policy agenda, with the Oireachtas having little option other than to rubber-​stamp already-​agreed arrangements. Thus e.g., Towards 2016:Review and Transitional Agreement 2008–​2009 was forty-​nine pages long and set out a very detailed list of commitments. See also Gallagher, “The Oireachtas” at 224. Many of these were technical in nature but at least two were substantial: the recommendations of the 1997 All-​Party Oireachtas Committee chaired by Jim O’Keefe TD and the 2004 Report of the Seanad Éireann Committee on Procedure and Privileges Sub-​ committee on Seanad Reform, chaired by Senator Mary O’Rourke. (See further Report of theWorking Group On Seanad Reform 2015.)

136

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27 The Thirty-​second Amendment of the Constitution (Abolition of Seanad Éireann) Bill 2013 was defeated in a referendum held on 4 October 2013. 1,240,729 citizens (39.2% of those eligible) voted. 634,437 (51.7%) opposed the Bill. 591,937 (48.3%) voted in favour. 28 There has been a notable reluctance to consider seriously looking beyond the British-​ style solution of a scrutiny reserve. See Report of the Sub-​Committee on Ireland’s Future in the EU Ireland’s Future in the European Union:  Challenges, Issues and Options (27  November 2008)  and Report of the Sub-​Committee on Review of the Role of the Oireachtas in European Affairs, 7 July 2010.   Nor has the Oireachtas been to the forefront of those seeking increased powers for national parliaments in the EU. Hence the Joint Committee on European Affairs report The Role of the Oireachtas in the European Union post 1996 Intergovernmental Conference (June 1996)  was an extraordinarily timorous and conservative document, including as regards the position of the Oireachtas vis-​à-​vis the executive. (See esp. 44–​45 thereof.) 29 The conclusions of the Report on Comparative Benchmarking of Parliaments are reported in the Houses of the Oireachtas Commission Annual Report 2010 at p. 19 thereof. 30 See Houses of the Oireachtas Commission Annual Report 2010, 57. 31 Source: Houses of the Oireachtas Commission Annual Report for relevant years. 32 Thirty-​nine specialist and support staff were created by 2015 to support the work of the Joint Committee of Inquiry into the Banking Crisis. (See Houses of the Oireachtas Commission Annual Report 2015, 66.) 33 Martin, “The Committee System” at 298. 34 Ibid. 35 Article 28.2 of the Constitution. 36 Article 28.4.1°. 37 B. Chubb, Cabinet Government in Ireland (Institute of Public Administration, Dublin, 1974), 8. 38 Other ideas current in nineteenth-​century British political theory reflected in the Irish  constitution are the separation of powers (reflected e.g., in Article 6 of the Constitution); and the principle of the sovereignty of the people (reflected e.g., in the Preamble and in Article 6.1). 39 See Chubb, Cabinet Government in Ireland at 9–​12. See more generally A. Birch, The British System of Government (tenth edition, Routledge, London, 1998). 40 Gallagher, “The Oireachtas” at 208. The opening clause is an implicit reference to Article 15.2.1 of the Irish Constitution. 41 The Dáil has dismissed two governments –​in 1982, the Garret FitzGerald-​led coalition, and in 1992, the Albert Reynolds-​led coalition. Nine governments have resigned rather than face likely defeat in the Dáil. Gallagher notes “one reason why governments have so rarely been dismissed by the Dáil is that when they have seen defeat staring them in the face, they have usually jumped off the cliff rather than waiting to be pushed” and summarised “the Westminster model… does not adequately capture the reality of the Dáil’s true role in appointing and dismissing governments. However, it remains

137

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true that Irish governments do not routinely fear dismissal by the Dáil.” (See “The Oireachtas” at 207.) 42 See more generally, Chubb, Cabinet Government in Ireland at 12 to 16. 43 Ibid., 11. Emphasis added. 44 Article 47 of the 1922 Constitution. 45 Article 48 of the 1922 Constitution. 46 Article 51 of the 1922 Constitution. 47 Article 55 of the 1922 Constitution. The term “extern minister” was not found in the text of the Constitution but came into later popular usage. See Chubb, Cabinet Government in Ireland at 16. 48 See generally Article 56 of the 1922 Constitution. 49 Article 53 of the 1922 Constitution. 50 Kevin O’ Higgins, Minister for Home Affairs, speaking in the Dáil on 12 October 1922. (Dáil Debates cc. 1558–​60). 51 O’Halpin, “Irish Parliamentary Culture and the European Union” at 125. 52 Chubb, Cabinet Government in Ireland at 22 to 24. 53 Cf. Gallagher, “The Oireachtas” 201 to 202 and 207, although cf. his views at 206–​207 thereof. 54 Chubb, Cabinet Government in Ireland at 21. 55 Gallagher, “The Oireachtas” at 219. 56 Ibid., pp 206–​207. 57 Ibid., 209. 58 Gallagher notes that committees tend to be more powerful in countries with consensus model parliamentary systems than in Westminster model systems, and notes the tendency in Westminster systems for committee stage consideration of draft legislation to follow the plenary discussion, so that changes resulting the committee’s deliberations tend to be minor. (Gallagher, “The Oireachtas” at 218 and 213.) 59 The last in 2016. 60 Hence Gallagher’s argument that the idea of parliaments acting like that of the Fourth Republic in France (which had its governments replaced by parliament on average over twice a year) is neither realistic or attractive. (See “The Oireachtas” at 207.) 61 See Gallagher, “The Oireachtas” at 213, citing P. Norton, “Conclusion: Legislatures in Perspective” in P. Norton (ed.), Parliaments inWestern Europe (Frank Cass, London, 1990) 143 at 147. 62 Gallagher, “The Oireachtas” at 15. 63 Chubb, Cabinet Government in Ireland at 16 and 33. 64 Article 13.3 of the 1937 Bunreacht. 65 Article 13.2 of the 1937 Bunreacht. Contrast Article 53 of the 1922 Constitution. In both the 1922 and 1937 Constitutions such power depended on retention of the support of a Dáil majority. 66 See generally M. MacCarthaigh, Accountability in Irish Parliamentary Politics (Institute of Public Administration, Dublin, 2005) at 70–​93. 67 “Irish Parliamentary Culture and the European Union” at 126.

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68 Recent years, have seen substantial improvements (e.g., in research facilities). (See generally M.  Dennison, “Supporting Parliament:  Oireachtas Library and Research Services” in MacCarthaigh and Manning, The Houses of the Oireachtas at 234). The observations offered by O’Halpin in the text would not be valid today. 69 MacCarthaigh, Accountability in Irish Parliamentary Politics at 71. 70 “The Oireachtas” at 219. The Coalition also implemented most of the reforms already recommended by a Fianna Fáil-​appointed 1971/​2 Sub-​Committee on Reform of Dáil Procedure. However, many such reforms had nothing to do with, and indeed some militated against, reducing the political system’s adversarial nature. Doubts may also expressed regarding the Public Accounts Committee constituting an exception to the ineffective nature of pre-​1980 committees. (See G. Mitchell, By Dáil Account (Institute of Public Administration, Dublin, 2010) 13–​16 and 56; and McGuinness and Nunn, The House AlwaysWins 117–​118.) 71 A. Arkins, “The Committees of the 24th Oireachtas” (1988) 3 Irish Political Studies 94. 72 Ibid., 97. 73 Ibid., 94. 74 Ibid. 75 Gallagher, “The Oireachtas” at 219. 76 O’Halpin, “Irish Parliamentary Culture and the European Union” at 126. 77 Laffan, “The Parliament of Ireland” at 253. 78 MacCarthaigh, Accountability in Irish Parliamentary Politics at 84–​87. 79 See the useful table in Martin, “The Committee System” at 296–​297. 80 Gallagher, “The Oireachtas” at 219. 81 Ibid. 82 See generally www.oireachtas.ie/​ViewDoc.asp?fn=/​documents/​committees31stdail/​Committees2011.htm&m=k (accessed on 12 May 2017). See generally on the changes introduced in the Committee structure in 2011, “Size matters for Oireachtas, as more members squeeze into fewer committees”, Journal.ie, 9 June 2011. 83 See Houses of the Oireachtas Commission, Annual Report 2015, 34. In the 32nd Dáil period, the number of joint committees rose to 21. 84 See generally Dennison, “Supporting Parliament” at 74. 85 See p. 85 thereof. (Emphasis added.) 86 See Government for National Recovery 2011–​2016 at 19 thereof. 87 In a turnout of 1,785,208 (representing 55.9% of the electorate), 928,175 votes (53.3% of the total) were against the proposed amendment and 812,008 (46.7%) in favour. See G. Barrett, “The Use of Referendums in Ireland: An Analysis” (2017) 23 Journal of Legislative Studies 1; G. Barrett, “Ireland and its Referendums: Why We Have Them,What We Do with Them, How We Conduct Them”, UCD Working Paper in Law, Criminology & Socio-​Legal Studies Research No. 01/​16 (available at SSRN: http://​ ssrn.com/​abstract=2784213). The Houses Of The Oireachtas (Inquiries, Privileges And Procedures) Act 2013 subsequently established a statutory framework for Oireachtas inquiries within the existing constitutional framework. 88 See also in this regard Gallagher, “The Oireachtas” at 220–​221.

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89 Martin, “The Committee System” at 301. 90 O’Halpin, “Irish Parliamentary Culture and the European Union” at 127. 91 Chubb, Cabinet Government in Ireland at 65. 92 Laffan, “The Parliament of Ireland” at 252.The lack of such interest in Ireland was noted and criticised in M. Robinson, “Challenge for Oireachtas”, Irish Times, 23 January 1973. 93 Contrast the positions in e.g., Slovenia and Denmark, Finland and Sweden, detailed in, respectively D. Fink-​Hafner, “Ensuring Democratic Control over National Government in European Affairs –​the Slovenian Experience” and T. Raunio and M. Wiberg, “Too Little, Too Late? Comparing the Engagement of Nordic Parliaments in European Union Matters”, in Barrett (ed.), National Parliaments and the European Union at 393 and 379. 94 D. Coombes, M. Beloff and N. Johnson, Westminster to Brussels:  the Significance for Parliament of Accession to the European Community (PEP Broadsheet 540, 1973). 95 See also Laffan, “The Parliament of Ireland”; and O’Halpin, “Irish Parliamentary Culture and the European Union”. 96 B. Laffan, “National Parliaments and Domestic Core Executives”, paper delivered at Ireland, Europe and the Challenge of Democracy –​Ensuring Democratic Control over Government in European Union Affairs, conference held at Europe House, Dublin, Friday, 20 May 2005. For studies of referendums generally in the Irish political system see Barrett, “The Use of Referendums in Ireland”, Barrett, “Ireland and its Referendums” and R.Sinnott, “Cleavages, Parties and Referendums: Relationships Between Representative and Direct Democracy in the Republic of Ireland” (2002) 41 European Journal of Political Research 811. 97 Robinson, “Challenge for Oireachtas”. 98 See also O’Halpin, “Irish Parliamentary Culture and the European Union” at 127–​131; and Laffan, “National Parliaments and Domestic Core Executives”. 99 See generally on the 1972 Act, note by M. Robinson at (1973) 10 CML Rev 352. 100 Robinson, “Challenge for Oireachtas”. 101 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07 –​Review of the Functions of the Joint Committee on the Secondary Legislation of the European Communities (Stationery Office, Dublin, 1991), para. 10. 102 See Joint Committee on the Secondary Legislation of the European Communities Report No. 55  –​Joint Committee on Secondary Legislation of the European Communities, Functions and Work (23 March 1977) at 6. 103 Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 10. 104 S. 4(1) of the 1972 Act. 105 M. Robinson, “The Role of the Irish Parliament” (1974) 22 Administration 1 at 15. See also by the same writer, “Irish Parliamentary Scrutiny of EC Legislation” (1979) 16 CMLRev 9. 106 Ibid. 107 Viz., by substituting a new s. 4 into the 1972 Act. (See s. 1(1) of the 1973 Act.) 108 And as will be seen in the text below, Oireachtas Committee reports on European matters were destined to suffer the same fate.

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109 S. 4(1)(b) of 1972 Act as substituted by s. 1(1) of 1973 Act. Continuing the approach of the 1972 Act, the annulment was to be without prejudice to the validity of anything previously done under the regulation in question. 110 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 38. The occasion on which the power was (allegedly) used was, however, not identified. Nor is there any evidence that a statutory instrument was actually annulled by the Houses. Writing in 2004, Tomkin asserted categorically that no statutory instrument made under the 1972 Act had ever been annulled by the Houses of the Oireachtas –​a point which he notes was confirmed to him by the Library of the Houses of the Oireachtas. (See J. Tomkin, “Implementing Community Legislation into National Law: The Demands of a New Legal Order” (2004) 2 Judicial Studies Institute Journal 130 at 138). 111 This includes the Joint Committee on European Affairs, which inherited this power in 1995 (by virtue of the amendment of s. 4 of the 1972 Act (as previously amended) by s. 1 of the European Communities (Amendment) Act 1995) and retained it until 2011, when it ceased to exist. So neglected was the annulment power that in this writer’s experience, there were members of the European Affairs Committee who were not even aware of its existence. 112 The position worsened considerably with the demise of the Joint Committee on the Secondary Legislation of the European Communities in 1992, since this Committee did produce reports on batches of statutory instruments at irregular intervals. One (random) example of this is the fourth Joint Committee’s Report 78 Statutory Instruments (9 May 1985). 113 See e.g., rulings in Meagher v. Minister for Agriculture and Food [1994] 1 IR 329, Maher v. Minister for Agriculture and Food [2001] 2 IR 139, and Browne v. Attorney General [2003] 3 I.R. 205 and Kennedy v. Attorney General [2005] 2 I.L.R.M. 401. The latter two cases led to the expansion by the European Communities Act 2007 of the extent to which ministers could use statutory instruments to give effect to European Community law. 114 See Joint Committee on the Secondary Legislation of the European Communities Report: Functions andWork of Joint Committee (23 March 1977) at 7–​8. 115 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 34. Note that from June 1979, MEPs were directly elected to the European Parliament, rather than having been selected from among the membership of the Houses of the Oireachtas, as had previously been the case. 116 By 1991, only two of Ireland’s then fifteen MEPs were dual mandate holders. See generally Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 50. See also in relation to MEPs, O’Halpin, “Irish Parliamentary Culture and the European Union” at 127–​128. 117 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 39. 118 Figures compiled from Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 16 and from Oireachtas Committee web page. 119 Laffan, “The Parliament of Ireland” at 268.

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120 See also generally M. Robinson, “Irish Parliamentary Scrutiny of EC Legislation” (1979) 16 CMLRev 9. See also D. Walsh, “Irish Parliamentary Scrutiny of EU Measures on the Free Movement of Persons: Going Through the Motions?” (2005) 40 Irish Jurist 261 at 263. 121 Ibid., 129. 122 See Joint Committee on the Secondary Legislation of the European Communities Report: Functions andWork of Joint Committee 9. 123 Viz., for having confined it to examining Commission legislative proposals rather than Commission programmes and policy documents (Ibid., 4–​5). 124 Following the recommendation of the first Committee (Joint Committee on the Secondary Legislation of the European Communities Report: Functions and Work of Joint Committee at 5). See further Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 5. 125 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 31. The seriousness which the Committee viewed this problem was sufficient for it to recommend a relaunch of the Committee. (Ibid., para. 29). 126 O’Halpin, “Irish Parliamentary Culture and the European Union” at 129. 127 See also Laffan, “The Parliament of Ireland” at 259. 128 See Joint Committee on the Secondary Legislation of the European Communities Report: Functions and Work of Joint Committee at 1. Note also the revealing report in the Irish Independent of 19 July 1974. 129 Thus for example, between April 1975 and March 1977 there were sixty-​four meetings of the Committee or its sub-​committees  –​an average of thirty-​two a year. (See Joint Committee on the Secondary Legislation of the European Communities Report: Functions andWork of Joint Committee at 2.) 130 Ibid., at 7. 131 With “rather more scope both for travel and moralising”, as O’Halpin has put it. (See O’Halpin, “Irish Parliamentary Culture and the European Union” at 129.) 132 Laffan, “The Parliament of Ireland” at 259. Furthermore, what advantage it had in terms of its intellectual resources and institutional memory was affected by the fact its membership endured only as long as the relevant parliamentary term. 133 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 31(b) and (d). 134 See Joint Committee on the Secondary Legislation of the European Communities Report: Functions and Work of Joint Committee at 1-​2; and its Report No. 07 –​Review of the Functions of the Joint Committee on the Secondary Legislation of the European Communities (Stationery Office, Dublin, 1991) at para. 13. 135 O’Halpin, “Irish Parliamentary Culture and the European Union” at 128–​129. 136 See Joint Committee on the Secondary Legislation of the European Communities Report: Functions andWork of Joint Committee at 6. 137 Ibid., 6. 138 See Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 15 thereof.

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139 Ibid. 140 Ibid., para. 29. 141 T. Raunio, “Holding Governments Accountable in European Affairs: Explaining Cross-​ National Variation” (2005) 11 Journal of Legislative Studies 319 at 338. 142 O’Halpin, “Irish Parliamentary Culture and the European Union” at 134. 143 T. Raunio, “National Parliaments and European Integration:  What We Know and What We Should Know” (Arena Working Paper No. 2, Centre for European Studies, University of Oslo, January 2009) at 6. 144 Ibid., but see also Raunio, “Holding Governments Accountable in European Affairs” at 336. 145 Laffan, “The Parliament of Ireland” at 255. 146 O’Halpin, “Irish Parliamentary Culture and the European Union” at 127 and 133–​134. 147 Joint Committee on the Secondary Legislation of the European Communities Report No. 07, para. 29. The report itself referred to this as a revamping or relaunch of the Committee. 148 Subsequently renamed the Institute of International and European Affairs, its website is www.iiea.com (accessed on 12 May 2017). 149 Note the account of these negotiations provided by a participant in them in F. Finlay, Snakes and Ladders (New Island, Dublin, 1998), Chapter 10, esp. 153. See also O’Halpin, “Irish Parliamentary Culture and the European Union” at 130. 150 See its 1993 orders of reference. Revised orders of reference in 1995 stipulated twenty-​ one TDs and ten senators. 151 The Committee’s chairperson was paid a considerable allowance in apparent recognition of the high expectations put on the office. (O’Halpin, “Irish Parliamentary Culture and the European Union” at 131) 152 Ibid., 132. Note that Gerry Collins, the chair of the Committee’s Sub-​Committee on European Legislation (regarding which, see the text below) was himself, a dual mandate-​holder (even at that time, however, a category of parliamentarian becoming ever-​rarer). 153 See Joint Committee on Foreign Affairs 14 July 1993 cols. 151–​164, cited by O’Halpin, “Irish Parliamentary Culture and the European Union” at 132. 154 See its Orders of Reference provided. 155 Laffan, “The Parliament of Ireland” at 260. The Oireachtas website contains records only of five reports. 156 See Joint Committee on Foreign Affairs, Report –​The Enlargement of the European Union (28 September 1994); and Joint Committee on Foreign Affairs, Report on European Union Security and Defence (23 May 1995). 157 See also Laffan, “The Parliament of Ireland” at 260. 158 See also O’Halpin, “Irish Parliamentary Culture and the European Union” at 133. 159 Following Orders of Dáil Éireann (on 8 June 2011) and of Seanad Éireann. 160 Laffan, “The Parliament of Ireland” at 260. 161 See the Terms of Reference of the Committee (reproduced in Joint Committee on European Affairs, Annual Report of the Joint Committee on European Affairs, 1995 –​Second

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Report (1 July 1996). By 2001, however it had nineteen members (fourteen TDs and five Senators). (See Annual Report –​Joint Committee on European Affairs 1997–​1998 (2001).) 162 Para. 3 of its Orders of Reference. 163 Para. 2(d) of the Joint Committee’s Orders of Reference. 164 In the year 2000, for example, it had thirty-​one meetings. In the year 2001, it had thirty-​nine meetings. (Source: Annual Reports of the Committee). 165 Ibid. at para. 3. Its proceedings were televised within the Leinster House complex and made available for television broadcast afterwards. 166 Para 2(a) of the Joint Committee’s Orders of Reference. 167 Ibid. 168 This sub-​committee was ultimately replaced by a full Joint Committee on European Scrutiny in the Thirtieth Dáil in 2007, which however was not reconstituted in the Thirty-​First Dáil in 2011. 169 See now www.oireachtas.ie/​parliament/​about/​europeanunion/​ (accessed on 12 May 2017). 170 See Report of the Advisory Group to the Joint Committee on European Affairs Examining the Role of the European Union (EU) in its Relations with Developing Countries (4 February 2003). 171 See Joint Committee on European Affairs, Annual Report 2006 (January 2007). 172 See Joint Committee on European Affairs, Annual Report –​Joint Committee on European Affairs 1997–​1998 (2001) Appendix 3. See also the analysis by Laffan to similar effect of the Committee’s meetings in 1997–​1999 in Laffan, “The Parliament of Ireland” at 263. 173 Laffan, “The Parliament of Ireland” at 262. 174 Joint Committee on European Affairs, Annual Report of the Joint Committee on European Affairs, 2000 (2002) at para 4.73. 175 Ibid., para. 4.72. 176 J. Rogers, “Voters Should not be Blackmailed into Voting Yes to Avoid Giving Offence”, Irish Times, 19 May 2001. 177 Such arguments arguably took insufficient account both of political realities and of the institutional needs of enlargement. 178 See generally K. Meenan “What is the Role of a Committee on European Affairs?” and L. O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland —​The European Affairs Committee, the Scrutiny Committee, and the European Union (Scrutiny) Act 2002”, both in Barrett (ed.), National Parliaments and the European Union at 309 and 273, respectively. 179 Meaning the Sub-​Committee on European Scrutiny appointed by the Oireachtas Joint Committee on European Affairs. This sub-​committee was replaced by the Joint Committee on European Scrutiny in the Thirtieth Dáil (2007–​11). 180 O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland” at 281–​282. 181 S. 2(2) of the 2002 Act, which refers to recommendations “by either or both Houses of the Oireachtas or by a committee of either or both such Houses”. (See further O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland”.) Note also the possibility of ministers or officials being invited to appear before a committee. (Ibid.)

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182 S. 2(3) of the 2002 Act. 183 S. 3(1) of the 2002 Act. 184 O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland” at 17. 185 By 2010, the Department of Foreign Affairs was the only Government Department purporting to provide pre-​ Council briefings. See European Movement Ireland, Accountability Report 2010 (Dublin, 2011), 47. See further the discussion of this issue in Chapters 5 and 6 of this book.

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4 The Lisbon Treaty and economic crisis: catalysts for reform of the Oireachtas role in European Union affairs

Introduction: the impact of the Lisbon Treaty and the 2008–​2013 economic crises The Oireachtas role in European policy is evolving. If the rate of change is slow, powerful forces are, nonetheless, over time producing an altered landscape. Chapter 5 offers a perspective on the present-​day Oireachtas role. The focus of this chapter is on the process of change. Two of the greatest recent catalysts for change have been (a) the evolution and entry into force of the Lisbon Treaty,1 and (b) the banking and sovereign debt crises of 2008–​13. The impact of both is examined here. Of course, some change might have occurred anyway given the widespread appreciation of a need for parliamentary reform, particularly in EU affairs. A 2015 OECD report on the Oireachtas accurately noted that Ireland has been distinguished by a commitment to broad-​based public-​sector reform, including a suite of budgetary governance reforms. The thorough-​going nature of the reform effort is undoubtedly a recognition that, while global factors played a role in catalysing the economic crisis within the country, domestic factors  –​institutional, procedural and indeed attitudinal –​also need to be addressed to improve Ireland’s resilience to future shocks.2

Reform pressures generated by the Lisbon Treaty and the economic crisis thus pushed, to some degree, against an open door.

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The impact of the banking and sovereign debt crises is examined below. The provisions of the Treaty itself and of the Lisbon Treaty and its associated Protocols have been seen in Chapter 1 and need no further elaboration here. However, they also produced a cascade of domestic legal reactions: (a) the amendment of Article 29.4 of the Constitution; (b) the adoption of the European Union Act 2009; and (c) the establishment of procedures within the Oireachtas for implementing the Lisbon Treaty, first by resolutions of each House in December 2009, then by amendments to Dáil and Seanad Standing Orders in November and December 2010. These changes, because somewhat technical in nature, have been left for examination later in this chapter, although chronologically, they came first. For now it is intended to turn to the impact of the banking and sovereign debt crises.

The impact of the banking and sovereign debt crises on the Oireachtas role in European affairs The onset of crisis The basic architecture of EMU was set out in provisions inserted into the EC Treaty and some annexed Protocols by the Maastricht Treaty in 1993. The Treaty basis is largely unchanged, although it is now largely found in the TFEU (i.e., the renamed EC Treaty), to some extent the TEU, and in some annexed Protocols.3 If the Treaty framework remained unchanged, economic circumstances and extra-​Treaty legal rules have altered considerably. 2007–​08 brought a major US banking crisis. From late 2009 to early 2010, and for several reasons, investor concerns soared regarding Greece, Ireland and Portugal (all Eurozone states) leading to rapid rises in sovereign bond yields. In May 2010, Eurozone member states and the IMF managed to avert a Greek financial collapse only with a €110 billion bailout loan. November 2010 saw an €85 billion bailout for Ireland. A €78 billion bailout for Portugal came the following May. Further funding became necessary for Greece in 2012 and 2015 (and a 50% haircut on debt owed to private banks in 2011). A €10 billion Cypriot bailout occurred in March 2013. These bailouts came with requirements to engage in harsh austerity to rectify public finances. In June 2012, €62 billion was provided to fund bank rescues by the Spanish government, although this time without any formal bailout. EMU evolved considerably during this time. The ECB played a key role by lowering interest rates, providing crucial loans to the banking system, and through secondary bond market interventions culminating in the 2012 Outright Monetary Transactions and 2015 Quantitative Easing programmes.4 2010 saw the creation first of temporary bailout funds for Eurozone states (the EU’s €60 billion European Financial Stability Mechanism and the Eurozone’s €440 billion

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European Financial Stability Facility). The Eurozone’s permanent €500 billion European Stability Mechanism followed in 2012. EU-​level budgetary surveillance and economic coordination also improved considerably, using several means:  EU legislation (the 2011  “six pack” and 2013 “two pack”); soft law (the 2011 Euro Plus Pact); and treaty law (the 2012 Fiscal Stability Treaty). Construction of European Banking Union, aimed at breaking the “vicious circle” between sovereign debt and banking crises, commenced in 2012, centring on a Single Supervisory Mechanism and a Single Resolution Mechanism.

Ireland and the sovereign debt and banking crises Beyond the general implications of the crises, there were specific consequences for Ireland. Ireland had been a founder eurozone state. An amendment to the Irish Constitution facilitating Irish ratification of the Maastricht Treaty and Irish entry to the single currency had been approved by referendum in June 1992.5 Ireland had thereafter been one of the initial eleven countries qualifying to participate in the third stage of EMU from 1 January 1999.6 Subsequently, Ireland became one of the countries hardest hit by the financial and sovereign debt crises. The response included an important Oireachtas role: numerous statutes had to be enacted. Some of the main features of the State’s response included the October 2008 €440 billion two-​year guarantee issued to six Irish banks so as to prevent their collapse. This was decided on by the Government on 30 September 20087 and implemented by enacting the Credit Institutions (Financial Support) Act 2008. The multi-​billion euro state bailout of Ireland’s two largest banks, Allied Irish Banks and Bank of Ireland, followed in February 2009. Another important crisis management measure was the Anglo Irish Bank Corporation Act 2009, providing for the nationalisation of the eponymous debt-​ ridden bank. In December 2010 the Irish government took a majority stake in Allied Irish Banks, subsequently rising to 99.8% –​in effect, nationalisation without legislation. Before the 2008 guarantee legislation’s expiry, a statutory instrument under it created the Credit Institutions (Eligible Liabilities Guarantee) Scheme 2009 in December 2009.8 This provided for an unconditional and irrevocable State guarantee for certain eligible liabilities: specifically, where a serious threat to the stability of credit institutions in the State existed or threatened, and where financial support to a specific institution was necessary to maintain the stability of the financial system in the State and remedy a serious disturbance in the economy.9 By October 2010, uncertainty concerning Irish banks’ financing needs and whether Ireland (then running a deficit of over €16 billion) could afford such guarantees drove

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Irish sovereign bond yields to levels which made State borrowing increasingly difficult. In November 2010, the Government sought a bailout involving funding from the EFSF, the IMF and other European countries. A ECB-​European Commission-​IMF “troika” agreed, without any Oireachtas involvement, a detailed three-​year aid package with the Irish Government, the EU/​IMF Programme of Financial Support for Ireland, in exchange for extensive austerity measures aimed at cutting state expenditure and increasing revenue, thus severely limiting national economic sovereignty during the lifetime of the agreement.10 Notwithstanding its major import, this bailout deal was not made a legally binding international instrument. Instead, it derived its extraordinary impact from the potential financial (rather than legal) consequences of noncompliance. The remarkable (yet intended) result of this was that no Constitutional or other requirement of parliamentary approval applied to the arrangement. Such was its political importance, however, that the Dáil was asked to vote its approval of the terms of the agreement as a non-binding resolution, and did so in December 2010.11 The package’s content has been well summarised thus: the overall EU-​IMF Programme of Financial Support for Ireland had a total value of €85 billion. Ireland provided €17.5 billion of this from its own resources (National Pension Reserve Fund and cash reserves). The remaining €67.5 ­billion was provided by the external partners from the EU, through the European Financial Stability Facility (EFSF) (€17.7bn), the European Financial Stabilisation Mechanism (EFSM) (€22.5bn), and the IMF (€22.5bn). €4.8 billion was provided by way of bilateral loans from the UK (€3.8bn), Sweden (€0.6bn) and Denmark (€0.4bn). Drawdown of funding was subject to compliance with the conditionality set out in the Programme Documents (the Memorandum of Understanding, the Memorandum of Economic and Financial Policies and the Technical Memorandum of Understanding).12

Ireland exited this programme on 15 December 2013, returning to normal market funding. Although (as usual with IMF programmes) post-​programme surveillance involving twice yearly review missions will continue until 75% of financial assistance received has been repaid, meaning (absent early repayments) until 2031.13 The three years of the bailout required much Oireachtas legislative activity. Thus e.g., particular aspects of the austerity imposed during the crisis period included cutting public sector pay with the Financial Emergency Measures in the Public Interest Act 2009, the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 and later the Financial Emergency Measures in the Public Interest Act 2013. A constitutional amendment facilitating the reductions of judges’ remuneration was also approved by the Oireachtas as the Twenty-​Ninth Amendment of the Constitution Act 2011, then approved by the electorate in a referendum held on 27 October 2011.14

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Further constitutional change came with the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Act 2012. Approved in a referendum held in May 2012, this amended the Constitution to facilitate ratification of the Fiscal Stability Treaty (which had been signed in March 2012 by the leaders of all Eurozone states plus eight other EU member states).15 This was followed by the November 2012 adoption of the Fiscal Responsibility Act 2012, which enabled the budgetary rules in Article 3 and 4 of the Fiscal Stability Treaty to take effect in Irish law, made provision for a medium-​term budgetary objective and a budgetary correction mechanism; and established an independent Irish Fiscal Advisory Council.16 Not all Oireachtas-​approved constitutional changes related to the crisis were successful, however. Two bailout-​era proposals concerning the Oireachtas itself failed. The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 which sought to increase considerably the investigative powers of Oireachtas committees was defeated in referendum in October 2011.17 Subsequently, the Thirty-​second Amendment of the Constitution Bill 2013 which proposed the abolition of the Seanad, was also rejected by the electorate in October 2013.18 Precious political energy that could otherwise have been channelled into more appropriately crafted Oireachtas reform was arguably squandered on both occasions. Other legislation reflected more general Eurozone-​related commitments.The European Stability Mechanism Act 2012 represented the involvement of domestic Irish law in the creation of the European Stability Mechanism (ESM)  –  a permanent loan mechanism for troubled eurozone states. The European Communities (Amendment) Bill 2012, which provided that, inter alia, a related European Council Decision of 25 March 2011 amending Article 136 TFEU to facilitate this should form part of the domestic law of Irish State. Also hugely significant, although focused on the particular case of Ireland, was the Irish Bank Resolution Corporation Act, 2013, which was hurriedly adopted in February 2013 as emergency legislation to liquidate the IBRC bank19 and the conversion (under the watchful eye of the ECB) of massively expensive promissory notes which had been issued to that bank by the State (involving payments which were both high-​interest and annual in nature) to a series of simpler sovereign bonds with a maturity measured in decades rather than years,20 thereby reducing the State’s debt burden. Notwithstanding the enactment of all this legislation by the Oireachtas, however, the executive regularly used its control of the parliamentary agenda to minimise the Oireachtas role and circumvent normal procedures for debate and scrutiny during this time.21 Hence, one hallmark of the 31st Dáil period was exceptionally extensive use by the Government (in breach of an express commitment to the contrary) of the legislative guillotine to cut short debate,

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particularly in relation to crisis legislation. (Remarkably, the Credit Institutions (Financial Support) Act 2008, which provided €440 billion of guarantees for Irish banks passed all legislative stages in less than 24 hours.)22 Beyond this, extraordinarily broad legislative delegations of power were made, both to government ministers23 and to the National Asset Management Agency.24 The Supreme Court would uphold both the latter extensive legislative delegation of power25 and the issuance of promissory notes to Anglo-Irish Bank under the Credit Institutions (Financial Support) Act 2008 (which empowered the Minister for Finance to extend financial support of unlimited monetary value to credit institutions),26 thereby taking a strikingly restrictive view of constitutional non-delegability as regards the Oireachtas role in such situations.

Crisis and the role of national parliaments: a comparative perspective The economic crisis brought with it major implications for the role of national parliaments across Europe. It involved e.g., considerable redesign of EU coordination of economic policy.The overall determination of what the crisis response should be was effected by an ad hoc grouping of consensus-​driven institutions and bodies.The European Council, Eurozone Summits and Eurogroup meetings played particularly prominent roles. This method of progress brought with it its own challenges for national parliaments:  the necessarily rapid pace of crisis-​combating reforms was capable of leaving them struggling to cope with the speed of decision-​making, information asymmetry, lack of transparency and with a lack of interest on the part of national electorates (notwithstanding the importance of the issues involved). In the budgetary field, the normative outcome of the crisis was a combination of EU legislation (including the so-​called “Six Pack” and “Two Pack”), soft law (such as the Euro Plus Pact) and “non-​EU treaty law” (such as the Fiscal Compact).27 These instruments made some (although rather infrequent) reference to national parliaments.28 They also introduced developments like budgetary semesterisation, thereby producing opportunities for engagement for national parliaments.29 National parliaments thus came to be explicitly accepted at European level as players in the budgetary field –​a trend that looks likely to continue30 The post-​2008 reforms sought not to replace national fiscal competences, but rather to increase European coordination in the process of arriving at national budgets.31 A key challenge for national parliaments like the Oireachtas has now become adjusting to a more coordinated European framework and taking into account “the repercussions that their own fiscal processes and decisions may have for other Member States and for the EU as a whole”.32 They must now “locate national interests in the light of the wider European backdrop”33 –​or to act, as some have put it, as parliaments of Member States rather than as parliaments of nation-​states.34

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How parliaments reacted

The reaction of individual parliaments like the Oireachtas to Europe’s economic crisis varied considerably. Auel and Höing have summarised that overall, it seems the crisis has neither significantly increased nor limited the use of parliamentary instruments in EU matters. At least when it comes to their overall level of engagement, the crisis is mainly “business as usual” for national parliaments. Parliaments showing high levels of activities in EU affairs also show high levels in crisis management –​independent of the fact whether they adopted the common currency or had been hit significantly by the crisis. However… the crisis had a very different impact on specific parliamentary activities. The share of resolutions/​mandates and opinions is similar –​as well as comparatively low –​and roughly reflects the ratio of crisis-​related documents out of all documents published by the Commission in 2010–​12. In contrast, the share of the number and hours of plenary debates on crisis issues is fairly impressive.35

Ireland was typical of this overall picture during the crisis. Comparatively speaking its general level of activity in non-​crisis EU matters remained low.36 As regards crisis issues (and, in this respect, rather like the parliaments of other debtor countries during the crisis),37 the Oireachtas was described as not very active in trying to influence the national government by issuing resolutions on crisis issues.38 Providing a forum for public debate

The extent to which national parliaments served as forums for communication and deliberation during the crisis varied considerably. The Dáil in particular dedicated considerable time to such issues.39 The economic crisis formed the subject of over 40% of EU-​related debates in most EU national parliaments, and a majority of such debates in eleven out of twenty-​seven member states, according to the same study.40 Ireland fell into this latter group (ranking only after Slovakia and Malta in the EU). Well over 60% of Irish EU-​related parliamentary debates over a three-​year period were devoted to crisis-​related issues. Undoubtedly this was related to the amount of crisis-​related legislation which had to be adopted, already chronicled in the text above.41 Adjusting to the new role of the European Council

Many national parliaments also reacted to the European Council’s increased role in the crisis. By 2013, two thirds of them, including Ireland, had introduced new rules and procedures increasing the scrutiny on this institution’s activities.42 The changes, introduced by Ireland’s then-new coalition government in 2011, are seen in the text below.

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An increased fiscal role

Thirdly, many states empowered their parliaments to scrutinise EU decisions impinging on national fiscal autonomy.43 A process of increased parliamentary involvement in national (and indeed coordinated European) budgetary policy formulation thus seems underway, even if it is also true that many opportunities presented to national parliaments by this process  will need to be taken advantage of by parliaments themselves.44 Parliaments are generally starting from a low base. In most countries the formal right of approval of national budgets has masked a near-​monopoly of executive budgetary power.45 However, there are now positive signs. The creation of fiscal councils envisaged in both the Fiscal Treaty and in six-​pack legislation will help in that it makes freely available independent fiscal expertise that makes realistic budgetary debates possible. Jančić’s characterisation of national parliaments’ response to the euro crisis as being “but an embryonic move towards their inclusion on the EU fiscal map” is accurate not only generally but also regarding the Oireachtas.46 Of course, at one level, European budgetary integration can be seen to imply restrictions for national parliaments , since they must now operate within the tighter parameters of a fiscal space established at EU level. However, at another level, it has created more controlling and input opportunities for a Dáil previously habituated to being merely presented with a budget each December and being expected to vote on it the same day. In contrast, the European Semester process provides more time to the Dáil and more information.47 Adding to this improving landscape are reforms (some European-inspired, some not) such as the creation of an Irish Fiscal Advisory Council providing much-needed independent advice,48 the creation of a Select Committee on Budgetary Oversight in July 2016 to enhance the Oireachtas role in the budgetary formation process and the establishment of a Parliamentary Budget Office in 2017 (on foot of a recommendation by the OECD in its review of budget oversight by the Irish parliament.)49 so as to provide financial and budgetary intelligence to Oireachtas members and to the Committee on Budgetary Oversight.50 Coutts therefore quite correctly contrasts the loss of de jure power involved in the European semester process with the absence of any de facto disempowerment.51 Theatres of regime change

Fourthly, during the crisis, national parliaments served as forums for events more dramatic than mere parliamentary debates: ten governments fell in the course of the Eurozone crisis.52 Ireland’s was one. Subsequent to the January 2011 resignation of Taoiseach Brian Cowen as leader of Fianna Fáil (the senior government coalition party), the Green Party (the junior Coalition party) withdrew its support, triggering a general election. The results were dramatic. Fianna Fáil

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plummeted from seventy-​one Dáil seats to twenty, the worst defeat of a sitting government in Irish history, reducing it to only the third-​largest party.53 Fine Gael, in contrast, rose to seventy-​six Dáil seats, and became the largest party for the first time ever. Labour rose to thirty-​seven, also its best-​ever performance. Fine Gael and Labour formed a coalition administration which would endure until March 2016.54 Political reform featured prominently in the 2011 election debates. But the new coalition’s huge majority, combined with a troika-driven austerity agenda, ultimately seemed to disincentivise ceding much power to the Oireachtas.55

The 2011 Programme for Government: Government for National Recovery 2011–​2016 The new programme for government, Government for National Recovery 2011–​ 2016,56 was dramatic in tone, terming the election a “democratic revolution” and asserting the need for “an unprecedented level of political resolve” to deal with “an unprecedented national economic emergency”.57 Inter alia, it addressed lacunae in the existing approach of the Oireachtas in relation to European affairs. Here it asserted “the Oireachtas must be given responsibility for full scrutiny of EU draft proposals, for proper transposition of EU legislation and for holding the Government accountable for the decisions it takes in Brussels”.58 Its intended means scarcely matched such ambitions, however. In some respects, its proposals fell short of the ambitious targets outlined in the Donohue and Creighton reports.59 Thus they contained no unambiguous commitment to the introduction of a scrutiny reserve system. Its proposed reforms fell under four headings. First,60 under “Oireachtas Accountability”, all Ministers were to be obliged to appear before their respective Committees or the Committee on European Affairs prior to travelling to Brussels for Council meetings, and systems were to be “put in place to ensure that Ministers do not bypass the Oireachtas and make decisions in Brussels on EU matters before these matters are subjected to scrutiny by the Oireachtas”.61 Secondly, under the heading “Oireachtas Committees”, greater emphasis was promised on deepening the involvement in EU matters of sectoral Oireachtas committees. Such committees would be required to deal with EU matters within their remit, and within a defined period of time. The idea was that “all Oireachtas committees must share the burden of dealing with EU policies and legislative proposals”.62 (Committees would be supplemented by a system of subcommittees and “a system of rapporteurs who have a particular interest in an area of policy or scrutiny and who volunteer to carry out an in-​depth study for the relevant

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committee.”)63 Thirdly, the programme addressed the issue of wholescale implementation of Union secondary legislation by statutory instrument, observing that the situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument. The checks and balances of parliamentary democracy are by-​ passed. The parliamentary treatment accorded home-​produced draft legislation must be extended to draft legislation initiated within the EU institutions. The Regulatory Impact Assessments prepared for Ministers on all EU Directives and significant Regulations will be forwarded automatically to the relevant sectoral Oireachtas Committees. These Committees should advise the Minister and the Joint Committee on European Affairs as to whether the transposition should take place by Statutory Instrument or by primary legislation. Where primary legislation is recommended the full Oireachtas plenary process should be followed.64

Fourthly, the programme announced an intention to give Oireachtas involvement in Europe Day (9 May) a lengthier and more practical slant than heretofore.65 The programme also envisaged an enhanced communication role for the Oireachtas, linking it with the European Commission’s and the European Parliament’s Irish offices “in communicating Europe to the Irish people”. It also proposed “Outreach programmes, meetings and competitions particularly in schools” with “TDs and Senators invited to participate”.66

Changes introduced during the lifetime of the 31st Dáil Annual Reviews of the implementation of the Programme for Government reported progress in achieving its aims during the 31st Dáil.67 Noticeably European-​related objectives, however, only ever featured once (in 2012).68 Some European policy-​related reforms, of varying significance, were introduced during this Dáil period. The mainstreaming of scrutiny of legislation to sectoral committees, replacing the work done by the Joint Oireachtas Committee on European Scrutiny69

Requiring sectoral Committees to consider EU matters falling within the remit of the Department(s) shadowed by them, was the primary change70 in the “enhanced role for the Oireachtas in EU scrutiny” claimed to have been implemented in the Programme for Government: Annual Report 201271 early in the 31st Dáil’s lifetime. Such a mainstreaming process was always going to pose prioritisation challenges. As then Tánaiste Eamon Gilmore put the matter in October 2013: a huge volume of documentation is received directly from the EU institutions on a weekly basis. Equally, committees have considerable policy workloads on the domestic

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front as well as legislative duties. It is important therefore that committees focus and balance their work. In that context, I welcome the identification by Oireachtas committees  –​for the first time this year  –​of priorities for detailed scrutiny based on the European Commission’s annual work programme. We must recognise that not everything is a priority… Equally however, for those proposals which are significant, there is a need to engage early, and ideally before the proposal is published, in order to have the most influence. That makes it crucial that committees focus on the proposals which are of most relevance from a national as well as a strategic EU perspective. The Commission’s annual work programme and the consultation roadmaps which are published alongside it are invaluable tools for committees seeking to engage at the earliest stages of EU policy-​making.72

In practice, Committees engaged to differing extents with EU-​related matters. Thus e.g., the Joint Committee on Foreign Affairs and Trade co-​hosted the Interparliamentary Conference for CFSP and the CSDP in Dublin Castle in March 2013, during Ireland’s Council Presidency.73 The Joint Oireachtas Committee of Inquiry into the Banking Crisis conducted an investigation into the banking crisis of 2008 onwards, engaging with that end with former ECB President Jean-​Claude Trichet.74 The Programme for Government:  Annual Report 2012 asserted that a “commitment to enhance the relationship with the European Parliament in conjunction with Ireland’s MEPs, including regular attendance by MEPs at relevant Dáil committees” had been introduced. There seems relatively little evidence of an enhanced relationship however. The introduction of appearances by the Taoiseach in the Dáil prior to each European Council75

Ex ante statements by the Taoiseach concerning European Council meetings were introduced early in the 31st Dáil. Since then time has been allocated both before and after European Councils for the Taoiseach to address the Dáil. The undertaking in the Fine Gael–​Labour coalition’s 2011 programme for government that “the Taoiseach would be obliged to brief the Oireachtas prior to attending European Council meetings” was fulfilled with regular Dáil statements. These occurred usually two or three days in advance (unsupported by any legal obligation, notwithstanding the wording of the programme). Scripted and generally heard out without interruption in the Dáil, the content of such statements was a matter for the Taoiseach. (Interruptions are likelier when the Opposition leader speaks afterwards.) The norm was that the agenda for the forthcoming European Council was explained by the Taoiseach and a broad, not very detailed, statement of the government’s position given. Opposition party leaders could follow the Taoiseach’s statement with their own (and sometimes shared their time with a party spokesperson on European affairs); they were

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given no opportunity to question the Taoiseach on the content of his statement. Concluding words were then spoken (by the Minister for Foreign Affairs if the Taoiseach was unavailable). This new tradition complemented the long-​standing ex post control regarding European Councils, a lengthier affair. This involved a statement (again scripted) being made by the Taoiseach, and provided to Opposition leaders in advance (who were known to complain when the Taoiseach’s actual statement differed significantly from the provided version). This statement too was generally heard out without interruption in the Dáil. (Again, interruptions were more likely when the Opposition leader was speaking.) The statement tended to involve a summary of the European Council’s outcome, framed to show the government in the best possible light. Such statements tended to be longer than those made prior to European Councils, and were followed by Opposition leaders’ statements (or by the party spokesperson on European affairs if a leader was absent). Again, a party leader and spokesperson on European affairs might share time. Independent Dáil members, organised in a so-​called technical group, also normally spoke, often sharing their speaking time. Opposition party statements tended to be framed so as to dispute or denigrate claimed achievements of the government in the European Council concerned. Statements were followed by twenty minutes of questions, taken by the Minister of State for European Affairs and frequently producing lively exchanges. The right to pose questions was technically open to all 166 Dáil members, but in practice was invoked only by four or five (mainly party spokespersons for European affairs). It was rare for even ten members of the Dáil to be involved in the entire debate from start to finish, including questions. The commitment of Enda Kenny as Taoiseach to European Council briefings during the 31st Dáil was notable –​he was invariably present both for the ex ante and the ex post briefings. The results were limited, however. There may have been some increased understanding of summit decisions. However, tellingly, both ex ante and ex post debates were poorly attended by Dáil members and press representatives alike. Ex ante statements indicated what was likely to be discussed at the European Council and the government’s intended position, but such matters tended to be of little political salience or news value until the European Council actually took place and advance discussions were necessarily vague. Ex post parliamentary control allowed the government to explain the European Council outcome and its position in more detail. However, such ex post control tended to take place at least four or five days after the European Council, and sometimes as much as fourteen days afterwards. By this time, the summit outcome was widely known and media attention would normally have moved on.

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The imposition of an obligation on government ministers to appear before committees prior to meetings of the Council

The 2012 Annual Report on the programme for government asserted a Ministerial obligation to appear before Committees prior to Council meetings had been put in place.76 The “obligation” was far from inescapable, however.77 By late 2013, the then Tánaiste Eamon Gilmore admitted that “we are still some way from the target of full engagement with all committees for all Council formations”. He claimed, however, that pre-​Council meetings with Ministers were becoming more routine across the committee system and that the trend was upwards.78 If this was so, the phenomenon must have been short-​lived. By 2015, a mere 15% of the seventy-​eight Council meetings held in that year were prepared for by a ministerial briefing of any Oireachtas committee79 –​a strikingly poor performance (which, moreover, would worsen in the 32nd Dáil period).80 The development of an outreach programme between schools and the Oireachtas to foster a better understanding of the EU81

An outreach programme for schools was quickly put in place.The Blue Star Programme, a voluntary education initiative for primary schools was launched in February 2012. Its aim was to introduce pupils, teachers, parents and the wider community to the EU and how it works. Participating schools register each October, submitting a short Action Plan outlining the goals they hope to achieve during the school year and how they propose to fulfil Programme requirements (namely, by carrying out projects and hosting events such as art exhibition or food fairs for Europe Day). Schools that successfully complete the Programme are awarded an EU Flag and a Blue Star certificate signed by the Minister for European Affairs. The figures of participants are small, although rising. In the context of a projected 560,000 primary school enrolments in 2015,82 190 schools successfully completed the Programme in 2015/​16, involving the participation of under 17,000 children.83 The involvement of the Oireachtas is limited, however: European Movement Ireland’s own website describes the Blue Star Programme as a venture of the Communicating Europe Initiative, supported by the Office of the Minister of State for European Affairs in the Department of the Taoiseach, the Department of Education and Skills, the European Commission Representation in Ireland and the European Parliament Information Office in Ireland. Moreover, although clearly praiseworthy, there seems no clear reason why the Oireachtas should restrict its outreach activities to primary school attendees. The communication activities of the National Forum on Europe from 2001 to 2009 were certainly never so limited.84

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A renewed and enhanced focus on Europe Day85

A renewed and increased focus on Europe Day also formed part of the new Government’s agenda.This began with a special sitting of the Dáil on 9 May 2011, focusing on where the EU should be by 2020 and on Ireland’s role. The determination of the role to be played by Europe Day seemed executive-​led rather than Oireachtas-​led from the beginning, although the government undertook that the “details of this work” would be “agreed in close consultation with the Oireachtas”.86 The intention expressed in Government for National Recovery 2011–​2016 to expand Europe Day to a Europe Week was duly legally reflected in 2013 alteration of Dáil Standing Orders to include mention of Europe Week.87 The degree of ambition attached to it in practice appears to have varied. References to Europe Week on the Oireachtas website are conspicuous by their absence.The 2015 Work Programme published by the Joint Committee on EU Affairs expressed a desire to “play a central role in the organisation and participation in Europe Day in the Houses of the Oireachtas” but merely undertook to engage on a Euroscepticism-​related topic, which involved in practice having a single debate on this issue.88 The establishment of numerous subcommittees across a wide range of areas

Supplementing the Committee system via the establishment of a large number (at that time, nineteen) sub-​committees was also mentioned in the 2012 review as a reform under the heading “National Parliament and the European Union”.89 The bulk of such sub-​committees have nothing to do with the EU, however. There were exceptions. The Joint Oireachtas Committee on Finance, Public Expenditure and Reform set up a “Sub-​Committee on European Scrutiny  –​ Finance and Expenditure” to consider “all matters pertaining to EU affairs, including scrutiny of proposed legislation”.90 The Joint Oireachtas Committee on EU Affairs set up a more subject-​specific Sub-​Committee on the Fiscal Treaty. Other Joint Committees, which set up sub-​committees that, given their subject matter, could scarcely avoid considering European matters: e.g., the Joint Committee on Agriculture had a Sub-​Committee on Fisheries and the Joint Committee on Transport and Communications had a Select Sub-​Committee on Communications, Energy and Natural Resources. All these in some way enhanced the Oireachtas role in European affairs.

Report of the Oireachtas Joint Committee on European Union affairs: “Assessment of current structures for Oireachtas scrutiny of European affairs” In October, 2013, the thenTánaiste, Eamon Gilmore announced in the Seanad that

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the Government has decided that it is timely to conduct an assessment of the current structures for EU scrutiny with a view to identifying areas for improvement. It is envisaged that this assessment will be conducted initially at official level in consultation with Departments and the Houses of the Oireachtas through the interdepartmental committee on EU engagement which is chaired by the Minister of State responsible for European affairs.91

This report has never been published. However, the Joint Oireachtas Committee on EU Affairs produced the April 2014 report Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs,92 as its contribution to this assessment process. This is analysed in Chapter 6.

The domestic impact of the Lisbon Treaty on the role of the Oireachtas in European affairs The impact of the Lisbon Treaty on the role of the Oireachtas, chronologically earlier than the financial crisis on domestic law has been somewhat more technical in nature. Its significance should nonetheless not be underestimated. The Lisbon Treaty provisions concerning national parliaments have been seen in Chapter 1 and need no repetition here. Their domestic impact is what concerns us here. Three reforms concerning the Oireachtas were introduced to accommodate the Lisbon Treaty’s entry into force. First, Article 29.4 of the Constitution was amended by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009 (approved by the electorate in referendum two on 2 October 2009),93 inserting new sub-​sections 4º, 6º, 7º, 8º and 9º.94 Secondly, certain changes were effected by the European Union Act 2009 (entering into force on the same date as the Constitutional amendments (1 December 2009).95 Thirdly, modifications were effected to the Standing Orders of Dáil Éireann and Seanad Éireann.96 This section examines the cumulative effect of these three separate sets of provisions. Collectively, they had six objectives: (i) facilitating the Houses providing a reasoned opinion on why a draft EU measure violates subsidiarity; (ii) facilitating either House bringing proceedings before the European Court of Justice concerning alleged subsidiarity infringements; (iii) facilitating an Oireachtas role when Council decision-​making shifts from being by unanimity to qualified majority voting; or (iv) facilitating an Oireachtas role when Council decision-​making shifts to decision-​making by co-​decision; (v) facilitating both Houses’ authorising certain decisions at EU-​level decisions in the justice and home affairs field; and (vi) facilitating both Houses’ authorising enhanced cooperation at EU level.

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Facilitating either House of the Oireachtas providing a reasoned opinion as to why a legislative draft does not comply with subsidiarity Lisbon Protocol (No. 2), examined in detail in Chapter  1, establishes a procedure for ensuring that draft European legislative acts comply with subsidiarity. National parliamentary chambers carry out a subsidiarity review, on foot of which they collectively send “yellow” and “orange” cards, when a stipulated number of votes allocated to national parliaments or chambers reflect the view that a draft does not comply with subsidiarity.97 The detailed rules concerning the Irish implementation of the subsidiarity procedure were set out in s. 7(3) of the European Union Act 2009, and in Dáil Standing Orders. S. 7 (3) provides that either House of the Oireachtas may, not later than 8 weeks after the transmission of a draft legislative act referred to in Article 6 of Protocol No. 2 to the Treaty on European Union and the Treaty on the Functioning of the European Union, send to the Presidents of the European Parliament, the Council and the European Commission a reasoned opinion in accordance with that Article if the House concerned passes a resolution in respect of the draft legislative act concerned authorising the House to so do.

This largely copies the wording of Article 6 of Protocol No. 2 itself.The reference to “a reasoned opinion in accordance with that Article” seems to imply that s. 7(3) authorises the Oireachtas only to send “a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity”.98 S. 7(3) of the 2009 Act says about the functioning of the subsidiarity mechanism in an Irish context merely that the House concerned must pass a resolution authorising its own sending of a reasoned opinion. More detailed provisions were set out in Dáil and Seanad Standing Orders providing that there should stand established following every Dáil reassembly or Seanad commencement a select committee.99 Furthermore, these select committees are required to come into existence within days.100 Whether the select committee appointed by each House works separately from that appointed by the other House is for itself to decide.101 In practice, however, committees considering alleged subsidiarity violations have always been joint meetings of both relevant Oireachtas select committees (unless the relevant deliberations take place in the short period before the election of the Seanad). Where a select committee forms the opinion that a draft legislative act does not comply with subsidiarity, it is required to submit a reasoned opinion by way of a report to be laid before the relevant House.102 Once this report is laid, the committee chairman103 must table a motion on it “forthwith” under s. 7(3) of the

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2009 Act.104 That motion is required to be given priority on the House Order Paper.105 (The urgency here is clearly motivated by the eight-​week deadline under Protocol No. 2 for reasoned opinions.) Where the House agrees the motion, the (Dáil) Ceann Comhairle or (Seanad) Cathaoirleach must cause a copy of the consequent resolution, plus a copy of the select committee’s report, to be sent to the Presidents of the European Parliament, Council and Commission.106 Ireland has sent a reasoned opinion three times:  in 2011, concerning the Common Consolidated Tax Basis proposal,107 in 2013, regarding the proposal to establish a framework for maritime spatial planning and integrated coastal management, and in 2013 concerning the proposal to establish a European public prosecutor’s office. Only on the last of the three occasions was a yellow card successfully collectively wielded.108

Facilitating either House causing a review action to be brought before the Court of Justice of the EU for infringement of the subsidiarity principle Under Protocol No. 2, the European Court of Justice is to have “jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought… by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament of a chamber thereof.”109 This provision leaves some doubt, given its use of the words “in accordance with their legal order”, on the point of whether a national parliament can compel such an infringement action to be brought. The Irish implementing provisions, however, are clear: under s. 7(4) of the 2009 Act, where either House of the Oireachtas is of opinion that an act of an institution of the European Union infringes the principle of subsidiarity provided for in the treaties governing the European Union and wishes that proceedings seeking a review of the act concerned be brought in the Court of Justice of the European Union… it shall so notify the Minister in writing for the purposes of Article 8 of Protocol No. 2 to that treaty and the Treaty on European Union and the Minister shall, as soon as may be after being so notified, arrange for such proceedings to be brought.110

S. 7(4) provides no further information. Once again, therefore, the further details of this process have been elucidated by Dáil and Seanad Standing Orders (which themselves succeeded December 2009 resolutions of each House). Under these, where a select committee takes the view that an EU institution’s act infringes subsidiarity and wishes proceedings reviewing the act to be brought to the European Court of Justice, it must lay a corresponding report before the relevant House.111 The Chairman of the committee is then required

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“forthwith” to table a motion under s. 7(4) of the 2009 Act (presumably to notify the Minister), which must be given priority on the Dáil Order Papers112 (an urgency here apparently injected by the general EU law requirement that review proceedings must generally be brought within two months of the publication of the measure concerned).113 Once the House approves the motion, the Ceann Comhairle or Cathaoirleach as the case may be, is required to send a copy of the consequent resolution to the relevant minister.114

Facilitating both Houses’ prior approval of (or non-​opposition to) European Council decisions applying qualified majority voting to decision-​making at Council level One Lisbon Treaty innovation was the creation of so many new so-​called simplified revision procedures for certain Treaty changes. Such Treaty changes can now be adopted without all the formalities previously associated with Treaty change. One aspect is the generalised Article 48.7 TEU passerelle procedure. This provides that where the TFEU or Title V TEU (which concerns the CFSP)115 provides for the Council of Ministers to act by unanimity, “the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case.”116 Under Article 48.7 any such initiative taken by the European Council is required to “be notified to the national Parliaments. If a national parliament makes known its opposition within six months of the date of such notification, the decision… shall not be adopted. In the absence of opposition, the European Council may adopt the decision.”117 A role for each national parliament is thus specifically envisaged.118 The details of how it is to be exercised, however, are left to national law and practice. In Ireland’s case, these details have been filled in by Constitutional and statutory provisions, and the terms of each House’s Standing Orders.119 Article 29.4.8° (inserted in the Constitution by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009) provides, inter alia, that the State may agree to the decisions… i under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity… but the agreement to any such decision…shall be subject to the prior approval of both Houses of the Oireachtas.

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This establishes therefore, going beyond Article 48.7 TEU, that if the mere lack of opposition on the part of the Irish parliament to such a proposed decision suffices for the purposes of EU law, it will not suffice for the purposes of Irish constitutional law. Under the latter, absent positive acts of prior approval of both Houses, any Irish agreement to such a decision will be unconstitutional. This fits into a broader European context of rights given to national parliaments sometimes being implemented at national level in a way that involves a rebalancing of the interests of parliamentary involvement with the efficiency of the European integration on the other. A somewhat similar exercise has been engaged in Germany, where a minority of members of the Bundestag can trigger a subsidiarity reasoned opinion, and in Austria, where a super-​majority of two thirds of legislators is required to assent to the operation of the Article 48 TEU “passerelle” procedure.120 In one way Article 29.4.8° of the Irish Constitution is distinguishable from these comparator situations because it also confers on the Oireachtas the right to have its positive approval required even when the Treaties have anticipated the deployment of a passerelle without specifying any role at all for national parliaments.121 Curiously, however, neither the provisions of the European Union Act 2009 nor those of the Standing Orders of both Houses reflect in any way this requirement of prior approval of both Houses of the Oireachtas which has been written into the Constitution. Instead, both reflect the position (more permissive of Treaty amendments) set out in Art. 48.7 TEU that all that is necessary for the purposes of the simplified revision procedure is that no opposition be expressed to the introduction of qualified majority voting being proposed. Thus s. 7(1)(a) and s. 7(1)(b) of the 2009 Act both make provision concerning resolutions opposing the adoption of the relevant decision, not approving the adoption of such decisions, as envisaged by Article 29.4.8°. Similarly, Order 115(1) of Dáil Standing Orders and Order 102(1) of Seanad Standing Orders stipulate that each House can empower a select committee to consider notifications under the Article 48.7.3 TEU general passerelle to switch to qualified majority voting, but it is only where select committees are opposed to the decision to which the notification refers, that it is stipulated that they should lay a report to this effect before the relevant House. Once this report is laid, the committee chairman must “forthwith table a motion thereon” under section 7(1) of the Act. This will be given priority on the Order Paper.122 The urgency here is provided by Article 48.7 TEU allowing only six months from the date of the initiative’s notification for national parliaments to make known their opposition. Once the House approves the motion of opposition, the Dáil Ceann Comhairle or Seanad Cathaoirleach must have the relevant resolution and a copy of the report sent to the European Council or Council President (as appropriate).123

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Where the committee is not opposed to the decision to which the notification referred, it must send a message to this effect to the other House.124 Remarkably, there is no requirement to notify the Government, notwithstanding that under Article 29.4.8° of the Constitution, prior approval of both Houses is required to empower the Government’s representative to agree to any such European Council decision!

Facilitating both Houses’ prior approval of (or non-​opposition to) decisions applying co-​decision at Council level Article 48.7 TEU also provides for a simplified revision procedure permitting the European Council to make decisions “allowing for the adoption of… acts in accordance with the ordinary legislative procedure”.125 Article 48.7 specifically confers a role on national parliaments:  any such European Council initiative must “be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision… shall not be adopted. In the absence of opposition, the European Council may adopt the decision.”126 Again, therefore, a role for national parliaments is envisaged in a simplified revision procedure as a matter of EU law. Again, the details of its exercise are left to national law and practice. Again, these details are filled in, in Ireland, by Constitutional and statutory provisions, and by amendments to each House’s Standing Orders effected in 2010. Article 81.3 TFEU establishes another passerelle to the ordinary legislative procedure, stipulating the Council127 “on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-​border implications which may be the subject of acts adopted by the ordinary legislative procedure”.128 Once again, any such proposal must be notified to national parliaments. If any national parliament makes known its opposition within six months, the decision shall not be adopted. Again, Ireland’s response is in Article 29.4.8° of its Constitution.129 Again, however, neither the statutory provisions nor the amended provisions of the Houses’ Standing Orders appear to take any account of the Constitution’s provisions. Article 29.4.8° of the Constitution provides that the State may agree to the decisions… …ii under those treaties authorising the adoption of the ordinary legislative procedure… but the agreement to any such decision…shall be subject to the prior approval of both Houses of the Oireachtas.

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Once again, this establishes that without positive acts of prior approval of both Houses, any Irish agreement to such a decision will be unconstitutional –​ augmenting the lesser power to oppose actively accorded by EU law.130 In contrast, the European Union Act 2009 and the Standing Orders of both Houses confine their attention to Treaty provisions, more specifically, those stipulating a role for national parliaments. Thus both Act and Standing Orders refer only to two of the four Treaty passerelles to the ordinary legislative procedure: the Art. 48.7 TEU (generalised) passerelle and the Art. 81.3 TFEU (family law) passerelle. No reference is made to the Art. 153.2 TFEU (social policy) passerelle or the Art. 192.2 TFEU (environmental policy) passerelle, the implementation of which is thus regulated at national level solely by Article 29.4.8° of the Constitution. Under s. 7(1) of the 2009 Act, either House may, not later than six months after receiving a notification concerning the Art. 48.7 TEU generalised passerelle, pass a resolution opposing the adoption of the decision notified.131 This will constitute an opposition to the decision concerned for the purposes of Art. 48.7 TEU, and the European Council must be informed of it.132 (S. 7(2) makes similarly specific provision for the Art. 81.3 TFEU (family law) passerelle.)133 Under the Houses’ Standing Orders, each House may empower a select committee to consider notifications of proposed deployments of these passerelles.134 Where opposed to the decision notified (not otherwise), the committee must lay a report before the House.135 The committee chairman must “forthwith” table a motion on the report (which must be given priority on the Dáil Order Paper, although not, by an apparent unintended omission, on the Seanad’s).136 The (Dáil) Ceann Comhairle or (Seanad) Cathaoirleach must cause a copy of all consequent resolutions of opposition to be sent to the European Council or Council President as appropriate137 (plus a copy of the relevant select committee report).138 Where the select committee is not opposed to the switch to co-​decision proposed at EU level, the matter never goes before the full House: the select committee simply informs the other House.139

Facilitating both Houses’ authorisation of certain decisions at EU level in the justice and home affairs field One Treaty provision concerning decisions in the justice and home affairs field has already been examined: Art. 81.3 TFEU, the (“family law”) passerelle to the ordinary legislative procedure. However, an Oireachtas role is also provided for regarding the operation of several other Treaty provisions in the JHA field. Four categories are examined below. Interestingly, in none of them (thus, in no case specific to the JHA field other than Art. 81.3 TFEU) is national parliamentary

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involvement required in the Treaties. The Oireachtas role here derives from the Irish Constitution and Irish statute law, thereby demonstrating increasing Irish sensitivity in the JHA area for reasons that are unclear.140 As regards the first two fields examined below (respectively, certain decisions to shift to co-​decision in the JHA field, and certain decisions regarding a European Public Prosecutor’s Office), domestic provision concerning them is to be found exclusively in the Constitution. This may be because the Standing Orders were drafted with a view to the European Union Act 2009, and it was forgotten that the Constitution imposes its own requirements on the Oireachtas in the JHA field.141 Consequently, there is a regulatory lacuna regarding these two fields. Shifting decision-​making to the ordinary legislative procedure: specific provisions in the justice and home affairs field

Two Treaty passerelles are at issue here. Article 82.2 TFEU empowers the Council (acting by unanimity and having obtained the consent of the European Parliament)142 to identify by decision aspects of criminal procedure: thereafter, directives concerning these aspects may be adopted by co-​decision. Article 83.1 TFEU empowers the Council (acting by unanimity and having obtained the consent of the European Parliament) to identify by decision certain areas of crime to come within that section143: once done, directives establishing minimum rules concerning the definition of criminal offences and sanctions in these areas can be adopted by co-​decision. Art. 29.4.8° of the Constitution (as inserted by theTwenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009) provides that The State may agree to the decisions, regulations or other acts—​ iii under subparagraph (d) of Article 82.2 [and] the third subparagraph of Article 83.1 …of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice, but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

Thus prior approval of each House has to be granted before the Irish Minister in the Council can give his or her consent to any such decision. In practice, each House passes a resolution expressing the House’s approval to any such measure in question, in most cases, without any debate. Decisions concerning a European Public Prosecutor’s Office

Article 86.1 TEU empowers the Council to establish, by a regulation, a European Public Prosecutor’s Office to combat crimes affecting the

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EU’s financial interests.144 Article 86.4 builds on this by empowering the European Council to amend parts of Art. 86 itself145 extending the powers of the Prosecutor’s Office to include serious crime having a cross-​border dimension.146 Both steps were subjected to a requirement of prior approval of both Houses by Art. 29.4.8° of the Constitution (inserted by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009). This provides that the State may agree to the decisions, regulations or other acts—​ iii under… paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice, but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas. Exercising options under the Schengen Protocol

The Schengen system consists of a body of rules originally based on the 1985 Schengen Convention and the (lengthier) 1990 Schengen Implementation Convention. Entering into force in 1995 as a body of rules entirely outside the framework of EU law, the Schengen acquis was absorbed into the EU framework in 1999 by the Amsterdam Treaty. UK determination to retain border controls led to the negotiation of the Schengen Protocol.147 The Protocol permits Ireland to request at any time participation in some or all of the acquis;148 to notify the Council in writing within a reasonable period its wish to take part in proposals and initiatives building on the acquis;149 or to notify subsequently its wish to take part in the cooperation in question;150 to notify the Council in writing, within three months, that it does not after all wish to participate;151 and then withdraw its notice152 or if certain delays occur in giving effect to such a withdrawal request, to request that the matter be referred to the European Council.153 Under Article 29.4.7° of the Constitution (inserted by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009): the State may exercise the options or discretions—​… ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community)… but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.154

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Exercising options or discretions under Protocol No. 21

Simultaneously adopted at Amsterdam and similarly annexed to theTEU andTFEU was the Protocol on the position of the United Kingdom and Ireland.155 Article 29.4.7° of the Constitution, inserted in its present form by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009, now provides that the State may exercise the options or discretions… iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.156

Facilitating both Houses’ authorisation of enhanced cooperation Enhanced cooperation (i.e., closer cooperation between a subset of the EU’s full membership) received its clearest sanction yet in the Amsterdam Treaty, then subsequently clearer and more detailed treatment (and the name “enhanced cooperation”) in the Treaty of Nice. According to what is now Article 29.4.7° of the Constitution, The State may exercise the options or discretions—​ i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies… but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.157

Notes 1 The Constitutional Convention, which produced the first draft of the Constitutional Treaty, began work in 2001. 2 See Introduction to OECD, “Review of budget oversight by parliament: Ireland”, OECD Journal on Budgeting Vol. 15/​3. 3 Ratification of the Lisbon Treaty by Ireland was (on the second attempt) facilitated by a referendum held on 2 October 2009 to amend the Bunreacht, resulting in a vote of 67.1% in favour (or 1,214,268 votes out of 1,816,098 cast). 4 This commenced in March 2015, was intended to last at least until September 2016 and to involve quantitative easing of over €1.1 trillion.

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5 By a vote of 69.1% in favour (1,001,076 votes out of 1,457,219 cast). 6 See G. Barrett, Economic and Monetary Union  –​The Third Stage (Institute of European Affairs, 1997) available online at http://​papers.ssrn.com/​sol3/​papers.cfm?abstract_​ id=1267647 (accessed on 12 May 2017). 7 The day after a record ISEQ fall and the initial rejection by the US House of Representatives of the Emergency Economic Stabilization Act of 2008. 8 By Statutory Instrument No. 490 of 2009. 9 In November 2011, this Scheme’s lifetime was extended to the end of December 2012 by Ireland’s new Government. 10 Agreed to on 28 November 2010, the published version of the plan was dated 16 December 2010. (See www.finance.gov.ie/​what-​we-​do/​eu-​international/​irelands-​programme-​eu-​imf-​programme (accessed on 12 May 2017).)  According to a statement made to the Dáil by the then Finance Minister, Brian Lenihan TD (see Vol. 726 Dáil Debates (12 January 2011)), the contents of the plan were based in substance on a Department of Finance document, National Recovery Plan 2011–2014 (Dublin, 25 November 2010).  11 See Vol. 725 Dáil Debates (15 December 2010.For analysis, see D. O’Donovan, “IMF Conditionality, the Irish Constitution and the Need for a Dáil Vote on the Bailout Agreement”, Human Rights in Ireland website, 22 November 2010, available online at http://humanrights.ie/constitution-of-ireland/imf-conditionality-the-irish-constitutionand-the-need-for-a-dail-vote-on-the-bailout-agreement/ (last accessed 28 September 2017) and S. Coutts, Constitutional Mutation in the Shadow of the EuroCrisis: the Case of the Oireachtas, unpublished paper, June 2017, cited with permission of writer, at 7.  12 Ibid. 13 See regarding this and more generally, the Commission website at http://​ec.europa.eu/​ economy_​finance/​assistance_​eu_​ms/​ireland/​index_​en.htm (accessed 12 May 2017). 14 By a 79.7% majority (i.e., 1,393,877 of 1,785,707 votes cast). The formerly straightforward provision of Article 35.5 of the Constitution that “the remuneration of a judge shall not be reduced during his continuance in office” was in consequence amended and now provides more qualified protection. On 30 October (shortly before the election in early 2016) it was reported that the Fine Gael–​Labour Coalition Government had agreed to begin a very limited and gradual unwinding of the legislation on pay cuts. (See S. Collins, “Brendan Howlin to Begin Unwinding Legislation on Pay Cuts”, 30 October 2014 and “FF Plan to Repeal Pay Act ‘Naive’, says Howlin”, Irish Times, 20 February 2016). 15 This referendum succeeded by a majority of 60.3% of votes cast (955,091 of 1,591,385), resulting in the insertion of a new Article 29.4.10° into the Constitution. 16 Under Article 4.4 of Regulation (EU) No 473/​2013, Ireland must have its national medium-​term fiscal plans and draft budgets based on macroeconomic forecasts produced or endorsed by an independent body. The Fiscal Advisory Council was accorded this endorsement function in the Fiscal Responsibility Act 2013. 17 By a 53% majority. 18 By a 51% majority. 19 Formerly known as Anglo-​Irish Bank.

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20 See for analysis of this complex but enormously significant transaction, K.  Whelan, “Ireland’s Promissory Note Deal”, Forbes.com, 11 February 2013 and J. Cotterill, “Why it matters that the Irish promissory notes are gone”, Financial Times, 7 February 2013. 21 See S. Coutts, “Constitutional Mutation in the Shadow of the EuroCrisis” at 8. 22 Ibid. See further regarding the guillotine, C. Lynch, E. O’Malley, T. Reidy, D. Farrell and J. Suiter, “Dáil Reforms Since 2011”, 48 and H. McGee, “Chief Whip Admits Government Performance on Dáil Reforms Deplorable”, Irish Times, 10 June 2013. 23 See s. 7 of the Credit Institutions (Stabilisation) Act 2010, authorising ministerial orders directing specific actions to be taken by financial institutions. 24 See s. 84 of the National Asset Management Agency Act 2009 which provides that NAMA may acquire eligible bank assets of participating institutions if it considers it necessary or desirable to do so having regard to the purposes of that Act. 25 See upholding of constitutionality of powers under the 2009 Act by the Supreme Court in Dellway Investments Ltd. and others v. National Asset Management Agency and the Attorney General [2011] IESC 4. 26 See Collins v. Minister for Finance [2016] IESC 73 and see generally in relation to all of the foregoing, S. Coutts, “Constitutional Mutation in the Shadow of the EuroCrisis” at 21–23. 27 See on the role of national parliaments in the crisis, D. Jančić (ed.), National Parliaments after the Lisbon Treaty and the Euro Crisis (OUP, Oxford, 2017); K. Auel and O. Höing “National Parliaments and the Eurozone Crisis: Taking Ownership in Difficult Times?” (2015) 38 West European Politics 375; and Scrutiny in Challenging Times  –​National Parliaments in the Eurozone Crisis, SIEPS European Policy Analysis (Issue 2014:1) and “Parliaments in the Euro Crisis:  Can the Losers of Integration Still Fight Back?” (2014) 52 JCMS 1184. See also A. Maatsch, Parliaments and the Economic Governance of the European Union –​Talking Shops or Deliberative Bodies (Palgrave Macmillan, London, 2016). See further D. Jančić, “National Parliaments and EU Fiscal Integration” (2016) 22 ELJ 225 and “Parliamentary Involvement in the Economic and Monetary Union after the Euro Crisis” in N. Lupo and C. Fasone, Interparliamentary Cooperation in the Composite European Constitution (Hart Publishing, Oxford, 2016). 28 See e.g., Article 3(9) of Regulation 472/​2013 (one of the “Two Pack” provisions) which provides that “during the course of the enhanced surveillance process, the competent committee of the European Parliament and the parliament of the Member State concerned may invite representatives of the Commission, the ECB and the IMF to participate in an economic dialogue.” Under Article 13 of the Fiscal Stability Treaty, “the European Parliament and the national Parliaments of the Contracting Parties will together determine the organisation and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments in order to discuss budgetary policies and other issues covered by this Treaty.” 29 For a description of how some have done so, see D. Jančić, “National Parliaments and EU Fiscal Integration” (2016) 22 ELJ 225 at 228. 30 See in this regard, the "key" role envisaged for national parliaments in the so-called Five Presidents’ Report (J.-​C. Juncker (with D.Tusk, J. Dijsselbloem, M. Draghi and M. Schulz), The Five President’s Report:  Completing Europe’s Economic and Monetary Union (European Commission, 2015) at 17).

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31 See Article 7 of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. 32 Jančić, “National Parliaments and EU Fiscal Integration” at 234. 33 D. Chalmers, “The Reconstitution of European Public Spheres” (2003) 9 European Law Journal 127 at 146, Jančić, “National Parliaments and EU Fiscal Integration” at 229. 34 Ibid., 236, borrowing the terminology of C. Bickerton, European Integration:  From Nation-​States to Member States (Oxford University Press, Oxford, 2012). 35 K. Auel and O. Höing, “Parliaments in the Euro Crisis: Can the Losers of Integration Still Fight Back?” (2014) 52 JCMS 1184 at 1187–​1188. 36 Ibid., 1188. (See Figure 1). 37 Those of Greece and Portugal, in particular. 38 Auel and Höing have calculated the number of crisis-related resolutions issued by the Oireachtas over a three year period as just over 20% of the total number of EU-​related resolutions. (See Auel and Höing, “Parliaments in the Euro Crisis” at 1189, Table 2.) 39 Ibid., 1190–​1191. 40 Auel and O.  Höing, “Parliaments in the Euro Crisis” at 1189; Jančić, “National Parliaments and EU Fiscal Integration” at 229. 41 As to which see text above. See further Auel and O. Höing, “Parliaments in the Euro Crisis” at 1189, Figure 3. 42 See W. Wessels, O. Rozenberg et al. (eds.) Democratic Control in the Member States of the European Council and the Eurozone summits: In Depth Reports onTwelve Member States (European Parliament, Brussels, 2013). The author was the Irish rapporteur for this study. 43 Ibid., citing COSAC 21st Biannual Report. 44 See further in this regard D. Curtin, “Challenging Executive Dominance in European Democracy” (2014) 77 MLR 1. 45 See in this regard, J. Wehner, Legislatures and the Budget Process: The Myth of Fiscal Control (Palgrave, Houndmills, 2010), P. Posner and C. Park “Role of the Legislature in the Budget Process: Recent Trends and Innovations” (2007) 7 OECD Journal on Budgeting 1 and I.  Lienart, Who Controls the Budget:  The Legislature or the Executive? (2005) IMF Working Paper 5. 46 “National Parliaments and EU Fiscal Integration” at 228. 47 E.g., through the publication of stability programmes and medium term budgetary objectives. 48 See regarding the legal underpinnings of the Council e.g., Article 6(1)(b) of Council Directive 2011/ 85/ EU of 8 November 2011 on requirements for budgetary frameworks of the Member States; and Art. 3(2) of the Fiscal Treaty. 49 See OECD, n. 2. 50 See generally S. Coutts, “Constitutional Mutation in the Shadow of the EuroCrisis”, 17–21. 51 Ibid.,17. 52 Namely, those of Ireland, Belgium, France, Greece, Italy, the Netherlands, Portugal, Slovakia, Slovenia and Spain. Some of these (such as the Slovakian and Portuguese governments) fell because they lost parliamentary confidence votes, the ultimate weapon of accountability in respect of European and other policies. (See “National Parliaments and EU Fiscal Integration” at 240.)

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53 Not that far ahead of the hard nationalist Sinn Féin which rose from five to fourteen seats. 54 113 of the 166 seats in Dáil Éireann were thus won by Fine Gael and Labour. Their agreed programme for government, Government for National Recovery 2011–​2016, was published by the Department of the Taoiseach on 6 March 2011.The election of Enda Kenny as Taoiseach and appointment of the Fine Gael–​Labour Government followed three days later. (See Anon., “Kenny elected Taoiseach, appoints Gilmore Tánaiste”, Irish Times, 9 March 2011.) 55 See C. Lynch, E. O’Malley, T. Reidy, D. Farrell and J. Suiter, “Dáil Reforms Since 2011: Pathway to Power for the ‘Puny’ Parliament?” (2017) 65 Administration 37 at 48, where the point is made that, if anything, power in the 31st Dáil period became more centralised, as the Cabinet ceded power to a smaller Economic Management Council and deployed the guillotine in the Dáil more often than its predecessor governments. 56 Available online at www.socialjustice.ie/​sites/​default/​files/​attach/​policy-​issue-​article/​ 3292/​2011–​03–​06-​programmeforgovernment2011–​2016.pdf (accessed on 12 May 2017). 57 See p. 2 thereof. 58 Government for National Recovery 2011–​2016 at 24. 59 See further Chapter 6. 60 And dealing with these proposals according to their importance rather than in the order in which they are dealt with in the programme itself. 61 Government for National Recovery 2011–​2016 at 25 and 26. 62 Ibid. 63 Government for National Recovery 2011–​2016 at 26. 64 Ibid. 65 Hence it proposed that the week in which Europe Day fell would be the occasion for a week-​long parliamentary debate on Ireland’s priorities within the EU. An  –​arguably unrealistically –​heavy agenda was envisaged for the week in question, since the programme also proposed that the Oireachtas would devote a full week each year (presumably the same one) to “debating major EU issues of concern to Ireland such as the Draft Annual Work Programme, Green and White Papers and proposals for EU budget co-​ordination”. (See Government for National Recovery 2011–​2016 at 25 and 26.) 66 Ibid. 67 These feature on the website of the Department of the Taoiseach. See www.taoiseach. gov.ie/​eng/​Work_​Of_​The_​Department/​Programme_​for_​Government/​ (accessed on 12 May 2017). 68 Programme for Government: Annual Report 2012, available at the time of writing at www. taoiseach.gov.ie/​eng/​Publications/​Publications_​Archive/​Publications_​2011/​PfG_​ Progress_​Report_​March_​2012.pdf (accessed on 12 May 2017). 69 This seems to be the “enhanced role for the Oireachtas in EU scrutiny” claimed to have been implemented in Programme for Government: Annual Report 2012 at 19 thereof. 70 Tánaiste Eamon Gilmore addressing Seanad in Second Stage debate on EU Scrutiny and Transparency in Government Bill 2013 (Vol. 227 Seanad Debates (24 October 2013) at 161). This requirement was inscribed in Committees’ terms of reference. 71 See p. 22 thereof. 72 See Vol. 227 Seanad Debates (24 October 2013) at 162. 73 These have been held at approximately six-​monthly intervals since April 2012.

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74 See the transcript of this engagement at https://​inquiries.oireachtas.ie/​banking/​ hearings/​jean-​claude-​trichet-​iiea-​event-​not-​an-​official-​inquiry-​hearing/​ and a video of the event at https://​inquiries.oireachtas.ie/​banking/​hearings/​jean-​claude-​trichet-​ iiea-​event-​not-​an-​official-​inquiry-​hearing/​?v=video. Attempts to engage with the ECB were less successful. (See S. Bardon, “ECB withdraws offer to assist banking inquiry”, Irish Times, 7 September 2015.) 75 See Programme for Government: Annual Report 2012 at 19 and 22. 76 Ibid. at 23 thereof. 77 The 2012 Report itself observed that “Committees have this power in their terms of reference” (implying that the so-​called obligation did not exist unless invoked by the relevant committee) and that “some Ministers have already appeared before their Committees” (implying a lack of uniformity in this regard). (Ibid. Emphasis added.) 78 See Second Stage debate on the EU Scrutiny and Transparency in Government Bill 2013 (Vol. 227 Seanad Debates (24 October 2013) at 162). 79 See further in this regard, text of Chapter 5, after n. 62. 80 By 10 March 2017, eight Council meetings had taken place in 2017 in Brussels without a prior ministerial briefing having been provided to an Oireachtas committee in relation to any. 81 See Programme for Government: Annual Report 2012 at 22–​23 thereof. 82 See Department of Education and Skills, Projections of Full-​Time Enrolment Primary and Second Level, 2013–​2031 (2013) at 8–​9 thereof. 83 See information provided on the website of European Movement Ireland (which functions as the Blue Star National Coordinator) at www.europeanmovement.ie/​blue-​star/​ (accessed on 12 May 2017). 84 See on this body, T.  Brown, Chapter  12 in G. Barrett (ed.), National Parliaments and the European Union –​the Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008). 85 See Programme for Government: Annual Report 2012 at 23. 86 Ibid. 87 Standing Order 102A, the contents of which are now re-​enacted in Standing Order 111. (See paragraph 3 thereof.) 88 See Joint Committee on EU Affairs Work Programme 2015 (January 2015, 31ENUA0022) at 13. See also the transcript on the debate held by the Joint Committee on this issue, to which a number of citizen groups were invited to contribute. 89 See Programme for Government: Annual Report 2012 at 22–​23. 90 Quoted from the Sub-​Committee website (which has since been removed). 91 See Vol. 227 Seanad Debates (24 October 2013) at 162. 92 Reference no. 31ENUA0011. 93 The referendum was carried by 1,214,268 votes to 594,606 corresponding to a 67.1% to 32.9% vote majority in favour on a turnout of 59%. This effectively reversed the result of the previous referendum held on 12 June 2008 in which the initial proposal to amend the Constitution to facilitate ratification of the Lisbon Treaty was defeated by 862,415 votes to 752,451 corresponding to a margin of 53.4% to 46.6% against, on a turnout of 53.1%.

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94 More precisely, Article 29.4.3º of the Constitution as it then stood was amended, subsections 4°, 5°, 6°, 7°, 8°, 9°, 10° and 11° of Article 29.4 were repealed, and new subsections 4°, 6°, 7°, 8° and 9° were inserted. (See s.  1(1) of the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009.) Note also that Article 29.4.5º, which provides that The State may ratify the Treaty of Lisbon amending the TEU and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 (“Treaty of Lisbon”), and may be a member of the European Union established by virtue of that Treaty.

was inserted in the Constitution on an earlier date than the other provisions in order to facilitate ratification –​viz., on the date of the Act’s signature by the President of the on 15 October. (See s. 1(1) and 1(2) of the 2009 Act.) Until 1 December, it was numbered subsection 12°. (S. 1(3) of the 2009 Act.) The dates on which all of the foregoing amendments took effect were stipulated in s. 1(2) of the Act itself. 95 Under Article 2 of the European Union Act 2009 (Commencement) Order 2009, sections 1, 2, 3, 4, 5, 6, 7 and 9 of the European Union Act 2009 came into operation on 1 December 2009. Section 8 of the 2009 Act (a provision relating to the interpretation of statutory instrument, not of especial relevance for present purposes) has not yet been brought into force. 96 (See Vol. 723 Dáil Debates (25 November 2010) and Vol. 206 Seanad Debates (2 December 2010). See generally regarding the changes to Dáil Standing Orders, Dáil Éireann, Modifications and Amendments in Effect to the Standing Orders Relative to Public Business (2007 Edition) (2 December 2010). 97 See Articles 6 and 7 thereof. 98 See Article 6 of Protocol No. 2. (Emphasis added). 99 See Dáil Standing Order 112 and Seanad Standing Order 99. 100 The Dáil is to appoint thirteen members to its select committee not later than on the third sitting day following its reassembly, of whom five constitute a quorum. The smaller Seanad has to appoint six members to its equivalent select committee, of whom three constitute a quorum –​and do this not later than the third sitting day following its commencement. 101 See Dáil Standing Order 113 and Seanad Standing Order 100. (See in particular Dáil Standing Order 113(3); Seanad Standing Order 100(3), and conversely, Dáil Standing Order 113(1) and Seanad Standing Order 100(1).) 102 See Order 114(3)(b) of Dáil Standing Orders and Order 101(3)(b) of Seanad Standing Orders, respectively. 103 Sic. 104 See Order 114(3)(c) of Dáil Standing Orders and Order 101(3)(c) of Seanad Standing Orders, respectively. 105 Ibid. 106 See Order 114(3)(d) of Dáil Standing Orders and Order 101(4) of Seanad Standing Orders, respectively. 107 With only a Dáil vote then being deployed, as the Seanad had not yet met following the general election in May 2011.

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108 See the contribution of Tánaiste Eamon Gilmore, speaking in the Second Stage Seanad debate on the EU Scrutiny and Transparency in Government Bill 2013. (See Vol. 227 Seanad Debates (24 October 2013) at 165.) See also Annex 1 to the 2015 Annual Report on Relations between the European Commission and National Parliaments (COM(2016) 471 final, Brussels, 15 July 2016). 109 Article 8 of Protocol No. 2. Emphasis added. 110 Emphasis added. Such proceedings are –​under both Article 8 of Protocol No. 2 and under s. 7(4) of the European Union Act 2009 –​brought under Article 263 TFEU. 111 See Order 116(2)(b) of Dáil Standing Orders and Order 103(2)(b) of Seanad Standing Orders, respectively. 112 Curiously, no equivalent requirement is laid down in Seanad Standing Orders. See Order 116(2)(c) of Dáil Standing Orders and Order 103(2)(c) of Seanad Standing Orders, respectively. 113 See Article 263 paragraph 6 TFEU. 114 See Order 116(3) of Dáil Standing Orders and Order 103(3) of Seanad Standing Orders, respectively. 115 Article 48.7 TEU does not apply to decisions with military implications or those in the area of defence. 116 Article 48.7 TEU Indent 1. The European Council acts by unanimity in this situation after obtaining the consent of the European Parliament, which has to be given by a majority of its component members. (Article 48.7 TEU Indent 4.) 117 Article 48.7 Indent 3. 118 Note that certain Treaty articles of pre-​Lisbon Treaty origin provide for a passerelle without specifying any role for national parliaments e.g., Article 153(2) TFEU (under which the ordinary legislative procedure can be applied by the Council to certain decisions in the social policy field) and Article 192(2) TFEU (under which the same goes for certain decisions in the environmental field). 119 Two more specific provisions were inserted in the Treaties at Lisbon establishing “passerelles” to qualified majority voting.   Under Article 31.3 TEU, the European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in the Common Foreign and Security Policy area. In contrast to Article 48.7 TEU, no role is stipulated for national parliaments by Article 31.3 TEU, however.   Article 312.2 TFEU, which empowers the Council to adopt a regulation laying down the multiannual financial framework (a framework lasting at least five years which the annual budget of the Union must comply with), establishes that “the European Council may, unanimously, adopt a decision authorising the Council to act by a qualified majority when adopting the regulation…” Again, no role is stipulated for national parliaments. 120 See concerning Austria, E. Miklin, “The Austrian Parliament and EU Affairs: Gradually Living Up to Its Legal Potential”, Chapter  19 of C. Hefftler, C. Neuhold, O. Rozenberg and J. Smith, The Palgrave Handbook of National Parliaments and the European Union (Palgrave Macmillan, Houndmills, 2015); and A. Lengauer, The role of national Parliaments in the European Union, report to Fourteenth FIDE Congress, Faculty of Law, Madrid Complutense University 3–​6 November 2010.

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121 As under Article 31.3 TEU (under which the European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in the Common Foreign and Security Policy area) and Article 312.2 TFEU (which empowers the Council to adopt a regulation laying down the multiannual financial framework, and under which the European Council may unanimously adopt a decision authorising the Council to act by a qualified majority when adopting this regulation). 122 See Order 115(2)(c) of Dáil Standing Orders and Order 102(2)(c) of Seanad Standing Orders. 123 See Order 115(3) of Dáil Standing Orders and Order 102(3) of Seanad Standing Orders. 124 See Order 115(2)(d) of Dáil Standing Orders and Order 102(2)(d) of Seanad Standing Orders. The point in the text below about an inbuilt leaning in the Standing Orders in favour of European-​level change applies equally here. 125 Article 48.7 Indent 2 TEU. (Emphasis added.) Once again, the European Council acts by unanimity after obtaining the consent of the European Parliament (to be given by a majority of its component members). (Article 48.7 TEU Indent 4). The “ordinary legislative procedure” is the name for the EU law-​making procedure referred to as “co-​decision” prior to the entry into force of the Lisbon Treaty. (See generally Articles 289 and 294 TFEU.) 126 Article 48.7 Indent 3. 127 Not, it will be noted, the European Council. 128 The Council is required to act by unanimity after consulting the European Parliament. See also e.g., Article 192.2 TFEU. 129 I.e., as amended to facilitate ratification of the Lisbon Treaty. 130 See text above at n. 109. 131 S. 7(1)(a) of the 2009 Act. 132 S. 7(1)(b) of the 2009 Act. S. 7(1) makes no mention of giving prior approval to the State’s agreement to the deployment of this passerelle (as required by Article 29.4.8° of the Constitution). 133 It stipulates that either House of the Oireachtas may, not later than six months after receiving a notification under Article 81.3 TFEU, pass a resolution opposing the adoption of the notified decision. (S. 7(2)(a) of the 2009 Act.) Furthermore, such a resolution is to constitute an opposition to the decision concerned for the purposes of Art. 81.3 TFEU, and the Council is to be informed accordingly thereof. (S. 7(2)(b) of the 2009 Act.) 134 Order 115(1)(a) of Dáil Standing Orders and Order 102(1)(a) of Seanad Standing Orders. 135 Order 115(2)(b) of Dáil Standing Orders and Order 102(2)(b) of Seanad Standing Orders. 136 Order 115(2)(c) of Dáil Standing Orders and Order 102(2)(c) of Seanad Standing Orders. The urgency reflects the Art. 48(7) TEU Indent 3’s six-​month deadline for making known national parliamentary opposition to using the generalised passerelle to the ordinary legislative procedure. Art. 81(3) TFEU Indent 2 establishes a similar six month deadline regarding the Art. 81(3) TFEU family law passerelle to the ordinary legislative procedure. 137 The Council rather than the European Council decides on the use of the Art. 81.3 TFEU (family law) passerelle. 138 Order 115(3) of Dáil Standing Orders and Order 102(3) of Seanad Standing Orders.

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139 Order 115(2)(d) of Dáil Standing Orders and Order 102(2)(d) of Seanad Standing Orders. Again no requirement to notify the Government is imposed, although under Article 29.4.8° of the Constitution, the prior approval of both Houses is required to empower the Government’s representative in the Council to agree to any decision under the Treaties authorising the adoption of the ordinary legislative procedure. 140 One former Taoiseach, John Bruton, has observed that “the opt-​out from the justice and home affairs chapter was a colossal mistake on the part of Ireland”. (See debates of the Sub-​ Committee on the Review of the Role of the Oireachtas in European Affairs, 12 May 2010.) 141 The preamble of both resolutions refers to the legislation, but not to the provisions of the Constitution. 142 See Article 82.2 Point (d). 143 Viz., “particularly serious crime with a cross-​border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis”. (See Art. 83.1 Indent 1 for this definition and Article 83.1 Indent 3 regarding the passerelle.) 144 The Council is required to act unanimously and after obtaining the consent of the European Parliament. 145 Viz., paras. 1 and 2 thereof. 146 The European Council acts unanimously after obtaining the consent of the European Parliament and consulting the Commission. 147 Or more fully, the Protocol on the Schengen Acquis integrated into the framework of the EU. This Protocol was retained in a somewhat amended form at Lisbon, and is annexed to the TEU and the TFEU. 148 Article 4 of the Protocol. A request which is decided upon by unanimity by the participants in the Schengen arrangements plus Ireland. 149 Article 5 of the Protocol. In this event authorisation is deemed to be granted. Note however the effect of the rulings in Case C-​77/​05 United Kingdom v. Council (“Border Agency Regulation”) ECLI:EU:C:2007:803 and Case C-​137/​05 United Kingdom v. Council (“Passports Regulation”) ECLI:EU:C:2007:805. 150 Article 5 of the Protocol. 151 Article 5(2) of the Protocol. 152 Article 5(5) of the Protocol. 153 Article 5(4) of the Protocol. 154 This is materially identical to the provision made in Article 29.4.6 prior to the amendment of Article 29.4 by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009. 155 Recast at Lisbon from its original Amsterdam form, this Protocol is annexed to the TEU and to the TFEU. 156 A more legally accurate and detailed version of the provision which existed prior to the amendment of Article 29.4 by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009, but one similar in its legal effect. 157 This is a more generally-​expressed version of the pre-​Lisbon Treaty provision (then numbered Article 29.4.8°) which (other than being less cumbersomely expressed) differed in effect only in that enhanced cooperation was less broadly available as an option.

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5 Where we stand now: an overview of the role of the Oireachtas in European Union affairs

Introduction This chapter describes the role of the Oireachtas in European affairs in the 30th Dáil (2007–​11) and 31st Dáil (2011–​16), the two most recently completed legislative periods.1 There are three main aspects to parliament’s relationship with Government. First, parliament has a role in forming and dismissing governments. Secondly, parliament has a role in policy-​making and law-​making. Thirdly, parliament has a role in rendering the Government accountable.2 Insofar as European affairs are concerned, the second and third roles are of most interest. Each will be examined in turn.

The parliamentary role in policy-​making and law-​making Parliament’s role in policy-​making and law-​making in Ireland can be divided (rather roughly) between that concerning decision-​ making at European level and that at Irish level. The two aspects overlap. Thus e.g., parliament’s role in, respectively, securing ministerial accountability, and in approving EU treaties has implications both at national and European level. Nevertheless, the division is a useful framework for examining EU-​related Oireachtas activities.

The role of the Oireachtas at national level in relation to policy-​ making and law-​making in the field of European affairs Introduction

Parliament’s role in policy-​making at national level has historically been limited, for several reasons. First, in practice, the Oireachtas has functioned largely

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as a policy legitimator, not a policy maker:  policy-​making   has  largely been a Government role. Secondly, insofar as law-​making has been concerned, the Government until very recently initiated most proposals. All legislative proposals it initiated were normally adopted by the Oireachtas. There has been virtually no chance of legislation introduced by any majority Government being defeated at second stage. Only minor changes have been likely at Committee stage. Thirdly, since little effort has been made to create consensus, Irish Governments having regularly used parliamentary majorities to have legislation adopted regardless of the will of any Opposition, there has historically been little incentive for the Opposition to be constructive.3 Whatever the Government proposed has tended to be opposed, even if it was what the Opposition itself would do, were it in power.4 However, parliament has not been without power. Since approval of legislation by the legislature is needed, the Government has had to bear this in mind in drafting legislation. The Government has also been constrained by its need of the support of the political parties providing its majority in the legislature.5 All this applies just as much to EU-​related lawmaking as it does to any other kind. A new era might have been expected to begin with the agreement of a confidence-andsupply arrangement in the 32nd Dáil.6 The outcome however has been a weakening of Government influence without an equivalent increase in parliamentary power. The volume of Government-sponsored legislation passed has thus fallen considerably and the Government seen policy diluted and record numbers of Dáil votes lost.Yet although more Opposition Bills have passed second stage they have universally stalled at committee stage.7 There are five targeted methods by which the Oireachtas exercises a national-​level role regarding European affairs. These are: (1) approving legislation amending the Constitution to facilitate treaty ratifications; (2)  approving legislation incorporating EU treaties into national law; (3) adopting legislation implementing directives or facilitating the implementation in Irish law of other EU law measures; (4) the Dáil approving certain EU-​related treaties; and (5) annulling regulations adopted under the European Communities Act 2007 for the purposes of implementing European norms. Primary and secondary legislation in Ireland and the “80% assertion”

The extent of EU law influence on member state laws has been a topic of debate, and indeed myth for many years.Töller traces the course of this debate as follows: in 1988, shortly after the Single European Act became effective, Jacques Delors, the former President of the European Commission, speaking before the European Parliament, made a prophecy: “In ten years 80 per cent of the legislation related to economics, maybe also to taxes and social affairs, will be of Community origin”.8 Over the almost 20 years that followed, this prophecy, meaning a non-​scholarly forecasting of a future development, has developed considerable momentum. Already in

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the early 1990s when the Maastricht Treaty was challenged in Germany before the German Constitutional Court, the claimant referred to Delors’ prophecy, turning it into a diagnosis, the description of a present situation. As we can read in the decision by the German Constitutional Court: “The claimant, referring to an assessment made by the President of the European Commission, Delors […], brings forward that already now almost 80 per cent of all legislation in the field of economic law […] is determined by Community law”.9 At the same time in France, the Conseil d’État reacted to Delor’s prophecy when considering the question how far French law was already penetrated by European law.10 In Autumn 2004, the Netherlands experienced a heated public debate after the Secretary of the State for European Affairs, Atzo Nicolai, stated that 60 per cent of all laws and regulations that are in effect in the Netherlands have their origin in Brussels.11 Later on commentators suggested that the share of Europeanized Dutch legislation was between 70 and 80 per cent.12 Similar figures were discussed for Austria.13 In early 2007, former German President Roman Herzog asserted in a newspaper article dealing with the Constitutional Treaty in particular and the state of Europe in general that 84 per cent of all laws and regulations that apply in Germany come from Brussels, whereas only 16 per cent originate from Berlin…14 15

The “80 per cent assertion” has even been taken up in some academic textbooks.16 In reality, the true extent of the “Europeanisation” of national legislation is difficult to measure. Simply counting the national statutes influenced by EU policy does not give the whole picture for several reasons. First, the impact of laws is qualitative, not merely quantitative. (The original US Constitution contained only seven articles and a preamble, yet few could doubt its significance.) Secondly, not all European norms require national legislative accommodation (with EU regulations frequently a case in point). Thirdly, European influence on national statutes may not be obvious:  such influence may be merely peripherally adverted to or not at all. Fourthly, not all legislation is adopted by parliament: secondary legislation must also be taken into account (although, complicating influence measurement, it often has more technical and less significant content than statutes).17 Fifthly, there are difficulties in defining an EU-​influenced statute. For example, if one of several hundred sections in a statute refers to European law, is this a Europeanised measure? Notwithstanding such reservations, counting the number of statutes and/​or statutory instruments which have a significant connection with EU law is one indicium of the impact of EU law, albeit a crude one. 2010 and 2015 have been selected as sample years in order to illustrate this “quantitative” impact of EU law on Irish law, as both were well into the terms of, respectively, the 30th Dáil and 31st Dáil and neither were election years.

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In 2015, the Oireachtas adopted sixty-​six public statutes. Of these twenty-​ one (32%) could be deemed significantly linked to EU membership, e.g., because adopted to give effect to EU directives or e.g., because they regulated powers created to give effect to European norms. A  further six statutes contained peripheral references to the EU.18 (See Table 5.1.)19 In 2010 the Oireachtas adopted forty statutes, of which seventeen (43%) were connected in some significant way with Ireland’s EU membership.20 (See Table 5.2.)21 The proportion of EU-​related statutes adopted by the Oireachtas, at 43% in 2010 and 32% in 2015,22 is thus significant. It also clearly varies considerably. However, in neither sample year did it approach a level of 80%. Furthermore, many individual provisions of most EU-​linked statutes had no connection with EU matters.

Table 5.1.  Statutes adopted by the Oireachtas in 2015 which had a significant connection with Ireland’s membership of the European Union Name of statute

Reasons why this statute is linked to European Union membership

1. Central Bank (Amendment) Act 2015

Adopted to facilitate Oireachtas Banking Inquiry, established to enquire into reasons for Ireland’s systemic banking crisis Refers to and relates to numerous EU measures Gives effect in part to EU directive on tobacco and related products Regulates lobbying to various categories of persons specifically including Irish MEPs Alters the systems of adjudication for employment rights deriving from EU law Gives effect, inter alia, to an EU framework decision on combating terrorism Makes provision in connection with a 1992 EU customs regulation, two conventions and EU decision on using information technology for customs purposes

2. Irish Collective Asset-​Management Vehicles Act 2015 3. Public Health (Standardised Packaging of Tobacco) Act 2015 4. Regulation of Lobbying Act 2015 5. Workplace Relations Act 2015 6. Criminal Justice (Terrorist Offences) (Amendment) Act 2015 7. Customs Act 2015

(Continued )

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Table 5.1.  (Continued) Name of statute 8. Consumer Protection (Regulation of Credit Servicing Firms) Act 2015 9. National Minimum Wage (Low Pay Commission) Act 2015 10. Petroleum (Exploration And Extraction) Safety Act 2015 11. Environment (Miscellaneous Provisions) Act 2015 12. Finance (Miscellaneous Provisions) Act 2015

Reasons why this statute is linked to European Union membership Expressly relies on definitions provided by a EU Commission recommendation Linked to and amends legislation enforcing employment rights conferred by EU law Gives effect to an EU directive

Relies on waste norms adopted to comply with EU requirements Makes provision regarding an Eurozone-​ related convention, and implements two EU directives 13. Choice Of Court (Hague Convention) Gives effect to a 2005 Hague Convention Act 2015 approved on behalf of the European Union in a EU Council decision 14. Financial Emergency Measures in the Partially reverses public sector paycuts linked Public Interest Act 2015 to EU-​funded bail-​out 15. Criminal Justice (Mutual Assistance) Gives effect to EU decisions and framework (Amendment) Act 2015 decisions 16. Equality (Miscellaneous Provisions) Gives effect to EU directives Act 2015 17. Climate Action and Low Carbon Structured to avoid infringing EU law and Development Act 2015 provides for progress reviews in meeting EU law obligations 18. Finance Act 2015 Concerned, inter alia, with an EU directive and EEA Agreement 19. Prisons Act 2015 Amends legislation implementing an EU Convention 20. Legal Services Regulation Act 2015 Fulfils commitments under EU-​sponsored bailout, takes account of lawyers’ EU rights of establishment, EU consumer rights and membership of European Parliament 21. International Protection Act 2015 Gives effect to three EU directives Total: 21 statutes out of 66 (32%)

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Table 5.2.  Statutes adopted by the Oireachtas in 2010 which had a significant connection with Ireland’s membership of the European Union Name of statute 1. Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 (Public Act No. 2/​2010) 2. Finance Act 2010 (Public Act No. 5/​ 2010) 3. Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (Public Act No. 6/​2010) 4. Euro Area Loan Facility Act 2010 (Public Act No. 7/​2010) 5. Inland Fisheries Act 2010 (Public Act No. 10/​2010) 6. Energy (Biofuel Obligation and Miscellaneous Provisions) Act 2010 (Public Act No. 11/​2010) 7. Electricity Regulation (Amendment) (Carbon Revenue Levy) Act 2010 (Public Act No. 13/​2010) 8. Merchant Shipping Act 2010 (Public Act No. 14/​2010) 9. European Financial Stability Facility Act 2010 (Public Act No. 16/​2010) 10. Central Bank Reform Act 2010 (Public Act No. 23/​2010) 11. Road Traffic Act 2010(Public Act No. 25/​2010) 12. Planning and Development (Amendment) Act 2010 (Public Act No. 30/​2010) 13. Value-​Added Tax Consolidation Act 2010 (Public Act No. 31/​2010)

Reasons why this statute is linked to European Union membership Contains provisions applying an EU directive

Makes changes to law related to Irish EEA membership Gives effect to an EU directive

Adopted to safeguard financial stability of eurozone and give effect to an agreement between EU member states Amends earlier regulations adopted to give effect to EU law Gives effect to an EU directive

Makes provision regarding Single Electricity Market and the EU greenhouse gas emissions trading system Refers to and relies on EU norms and Irish measures which give effect to EU norms Makes provision for Irish participation in the European Financial Stability Facility Effects numerous amendments to Irish regulations designed to give effect to European Union norms Makes provisions regarding European Convention on Driving Disqualifications Transposes EU environmental directives

Applies 2006 VAT Directive and provides for intra-​EU acquisitions

(Continued )

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Table 5.2.  (Continued) Name of statute

Reasons why this statute is linked to European Union membership

14. Chemicals (Amendment) Act 2010 (Public Act No. 32/​2010) 15. Credit Institutions (Stabilisation) Act 2010 (Public Act No. 36/​2010)

Applies EU chemical directives and regulations Amends regulations implementing EU directive; seeks compliance with EU state aids rules Specifically includes provisions implementing EU/​IMF bailout

16. Financial Emergency Measures in the Public Interest Act 2010 (Public Act No. 38/​2010) 17. Public Health (Tobacco) (Amendment) Transfers powers conferred by regulations Act 2010 (Public Act No. 39/​2010) implementing EU norms Total: 17 statutes out of 40 (43%)

EU law also had a significant impact on laws adopted as statutory instruments. As can be seen from Table 5.3 below, 689 statutory instruments were adopted in the sample year 2010. 208 of these (30%) were adopted under s. 3(1) of the European Communities Act 1972 (a provision empowering ministers to make regulations to give effect to EU law) and 108 (16%) under other legislation, giving a total of 216 statutory instruments (46%) of the total) linked to Ireland’s EU membership. 642 were adopted in the sample year 2015. 139 of these (22%) were adopted under s. 3(1) of the 1972 Act and 240 (37%) under other legislation, totalling 379 statutory instruments (59%) of the total) with a EU connection. Some interesting trends seem clear. Interestingly, in both years surveyed (2010 and 2015), a higher proportion of statutory instruments than statutes had a European connection.23 Considerable use is being made of statutory instruments under the European Communities Act 1972: 208 such instruments were adopted in 2010 and 139 in 2015. In both years, however, statutory instruments adopted under s. 3(1) of the 1972 Act were only part of all EU-​related secondary legislation: 30% of all instruments adopted in 2010 and 22% in 2015 were made under s. 3(1). However, 16% of all instruments signed into law in 2010 (108 statutory instruments) were EU-​related yet nonetheless adopted under legislation other than the 1972 Act. In 2015, 37% of all instruments (240 statutory instruments) were EU-​related yet not made under the 1972 Act (a higher proportion of EU-​related statutory instruments than were made under the 1972 Act).

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Table 5.3.  Proportion of statutory instruments adopted in 2010 and 2015 which had a significant connection with Ireland’s membership of the European Union Type of statutory instrument

2010

2015

All kinds Statutory instruments adopted in 2010 under s. 3(1) of the European Communities Act 1972 Statutory instruments adopted under other legislation but which had a significant connection with Ireland’s European Union membership Total number of statutory instruments adopted which had a significant connection with Ireland’s European Union membership

689 208 (30% of total)

642 139 (22% of total)

108 (16% of total)

240 (37% of total)

216 (46% of total)

379 (59% of total)

Thus, use is being made of a variety of powers to adopt EU-​related statutory instruments.24 Overall, the impact of EU law in Ireland, is quantitatively significant regarding both statutes and statutory instruments. However, no matter how broadly one conceives the notion of EU-​connected domestic legislation, in neither sample year did it approach 80% of all legislation adopted at domestic level. Reviewing the five main ways in which the Oireachtas exercises its role in relation to policy-​making and law-​making at national level regarding European affairs

The Oireachtas exercises its role concerning EU-​related policy-​making and law-​ making at national level in five main ways. The first three involve the adoption of primary legislation. The fifth relates to the creation of statutory instruments in order to implement obligations under EU law. 1. Legislation amending the Constitution to facilitate treaty ratifications

Article 46 of the Irish Constitution provides for amending the Constitution. Amendment proposals are required to be initiated in Dáil Éireann as a Bill, and having been passed (or deemed passed) by both Houses, must be submitted by referendum to the decision of the people,25 after which they must be signed by the President.26 The Irish Constitution has been amended on six separate occasions to facilitate Irish accession to the founding treaties of Paris and Rome and later

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amending treaties. The most recent occasion was the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009, which subsequent to its being passed by both Houses was approved by the electorate in a referendum.27 The process of amending the Constitution to facilitate ratifying a European treaty is not confined to treaties amending or adding to (or replacing)28 constitutive treaties. The Eleventh Amendment of the Constitution Act 1992 inserted a new Article 29.4.6° providing that the State could ratify the 1989 Community Patent Convention.29 The 2011 Treaty Establishing the European Stability Mechanism (ESM) was deemed by the Government not to require the adoption of an analogous Constitutional amendment.30 However, the contrary view was taken of the  2012 Fiscal Stability Treaty.  In consequence,  the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Act 2012 was passed by both Houses then approved by the electorate in referendum.31 2. Legislation incorporating EU treaties into national law

Under Article 29.6 of the Irish Constitution, “no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas”. Before Ireland’s entry into the European Communities in 1973, legislation was enacted to comply with Article 29.6 regarding the various elements of the acquis communautaire as well as future acts of institutions and bodies of the Communities.32 This Act was the European Communities Act 1972. S. 2(1) of the 1972 Act33 now provides that the treaties governing the EU, acts adopted by the EU institutions,34 acts adopted by the institutions of the European Communities in force immediately before the entry into force of the Lisbon Treaty and acts adopted by bodies competent under those treaties are binding on the State and part of domestic law under the conditions laid down in the treaties governing the EU.35 The original Treaties have been added to and amended by many others.The list of treaties in the 1972 Act has been correspondingly amended (thereby calling the legislative role of the Oireachtas into play) each time a major Treaty has been ratified. However, many other Treaties (or aspects thereof) have been incorporated into national law by amending the provisions of the European Communities Act 1972, including, e.g., budgetary treaties, and accession treaties for new member states. Most recently, the European Communities (Amendment) Act 2012 amended the European Communities Act 1972, so that four separate measures should be part of the domestic law of the State: (a) a 2010 Protocol amending the Protocol on Transitional Provisions,36 (providing for a temporary additional allocation of European Parliament seats for states disadvantaged by Ireland’s

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delay in ratifying the Lisbon Treaty beyond the 2009 European Parliament elections); (b) a 2011 European Council Decision amending Article 136 TFEU to assure the European Stability Mechanism’s legality; (c) the 2011 Treaty concerning Croatian accession to the EU; and (d) the 2012 Protocol on the concerns of the Irish People on the Treaty of Lisbon37 (which facilitated the second (positive) Irish referendum vote regarding this Treaty). 3. Legislation implementing directives or facilitating the incorporation into Irish law of other measures consequent on Irish membership of the EU

A directive by its very nature envisages an incorporation process into domestic law.38 Although most directives are implemented into Irish law via secondary legislation, primary legislation is sometimes enacted by the Oireachtas for this purpose. Legislation is occasionally enacted exclusively to implement a directive. Thus e.g., the Petroleum (Exploration And Extraction) Safety Act 2015 was passed to implement Directive 2013/​30/​EU on safety of offshore oil and gas operations. Legislation can also be adopted partly to implement a directive and partly to achieve other goals: the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 was adopted partly to implement the Third Money Laundering Directive and partly to repeal some existing money laundering laws and consolidate others.39 Legislation can also be enacted in relation to other measures consequent on Irish membership of the EU. Such legislation can vary considerably in its form and its causes. Hence e.g., the Criminal Justice (Mutual Assistance) (Amendment) Act 2015 was adopted to implement a Council decision on mutual recognition of confiscation orders,40 a Council framework decision on mutual recognition of financial penalties,41 a Council decision on cooperation in crisis situations,42 a Council decision on cooperation between prosecutors in the framework of Eurojust,43 a Council decision on the EU–​Japan Agreement on mutual legal assistance in criminal matters44 and a Council framework decision on procedural rights and mutual recognition of criminal verdicts rendered in absentia.45 The Finance (Miscellaneous Provisions) Act 2015 in contrast was enacted partly to make provision regarding the 2014 Brussels Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund.46 4. Approval by the Dáil of EU-​related treaties

Under Article 29.5.1° of the Constitution every international agreement to which the State becomes a party must be laid before Dáil Éireann. Under Article 29.5.2°, the State is not bound by any international agreement involving a charge

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upon public funds unless its terms have been approved by Dáil Éireann. Art. 29.5.1° and Art. 29.5.2° apply in a EU context just as in any other. Whenever the founding Treaties have been amended by a major Treaty, a corresponding motion has been approved by the Dáil. Hence, subsequent to the 2009 referendum facilitating ratification of the Lisbon Treaty,47 a motion was approved by the Dáil to this effect: that Dáil Éireann approves the terms of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on 13 December 2007, copies of which were laid before Dáil Éireann on Tuesday, 6 October 2009.48

Such motions will be necessary even when a treaty, although EU-​related, does not amend the constitutive Treaties. Hence in 2010, a motion to approve the agreements providing for the EU-​IMF Programme of Financial Support for Ireland was successfully moved by the then Minister for Finance.49 5. Annulment of regulations which are adopted under the European Communities Act 1972 for the purposes of implementing European norms

Although it is possible for EU directives to be implemented by Oireachtas legislation, it is more normal for them to be implemented via ministerial regulation. One of the main vehicles for this has been s. 3 of the European Communities Act, 1972 (as amended). S. 2(1) of the 1972 Act50 provides that the treaties governing the EU, acts adopted by EU institutions,51 and acts adopted by bodies competent under those treaties52 are to be binding on the State and part of its domestic law.53 S. 3(1) of the 1972 Act then goes on to provide that a Minister of State may make regulations for enabling this provision to have full effect. Under s. 3(2) of the 1972 Act, the legal impact of such regulations may be considerable, since they may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).

Since 2007, such regulations may create indictable offences.54 In practice, large numbers of statutory instruments are adopted under s. 3(1) of the 1972 Act. Thus, for example, in 2015 alone (as has been seen), 139 statutory instruments were adopted under s. 3(1) (22% of the total of 642 statutory instruments adopted in that year).

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S. 3A of the 1972 Act55 seeks to ensure democratic control over ministerial implementation of EU law via such statutory instruments. Under s. 3A, every [implementing regulation shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.56

The theory espoused by s. 3A of the 1972 Act is not matched by reality. In practice, the Oireachtas exercises no real oversight of use of secondary legislation to implement EU law. Oireachtas members will generally only find out about statutory instruments implementing European obligations after they have been made, and even then, only if willing to trawl through the various instruments laid before the House (normally, since 2012) by electronic delivery to the Oireachtas library.57 From the beginning, s. 3A and its predecessor provisions have been a dead letter. Moreover, many statutory instruments with a significant connection to Ireland’s EU membership are also adopted each year under statutes other than the 1972 Act, and the system of control embodied in s. 3A has no application to these. In 2015 (as already seen), 240 such statutory instruments were adopted, 37% of the total of 689 statutory instruments made that year, and considerably more than the mere 139 (22% of the total) adopted under the 1972 Act. Given the convenience of this method of implementing European norms, and the lack of any systematic democratic control over the system,58 it is unsurprising that Irish ministers have been using it for decades to give effect to all kinds of rules, even when these rules ought arguably to have been implemented by statute. Unsurprisingly too, the drafting quality of regulations, unchecked as they are by any parliamentary control, has varied.59 The programme of Government for the 31st Dáil period proposed to terminate this situation. Under the heading “Transposing EU Legislative Measures”, it asserted that the situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument. The checks and balances of parliamentary democracy are by-​ passed. The parliamentary treatment accorded home-​produced draft legislation must be extended to draft legislation initiated within the EU institutions.60

A means of achieving this end was proposed, viz., the regulatory impact assessments prepared for Ministers on all EU directives and significant regulations will be forwarded automatically to the relevant sectoral Oireachtas

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committees. These committees should advise the Minister and the Joint Committee on European Affairs as to whether the transposition should take place by statutory instrument or by primary legislation. Where primary legislation is recommended the full Oireachtas plenary process should be followed.61

Expectations of significant change in this area were quickly dissolved, however. Then Tánaiste and Minister for Foreign Affairs, Eamon Gilmore, to the Seanad towards the end of 2013 of his view that there is a comprehensive legislative framework in place that is largely fit for purpose, subject to some technical adjustments to reflect the role of sectoral committees in the scrutiny of statutory instruments. However, while statutory instruments are being laid in the Oireachtas Library, Oireachtas committees do not receive the texts directly. Therefore, there is scope for improvement. Equally, there may be scope to improve the information provided for committees to help them to prioritise statutory instruments for detailed scrutiny.62

A pilot scheme for reform (implicitly confirming that scope for reform extended beyond the narrow range outlined by the Tánaiste above) was introduced by the then Minister for Transport, Tourism and Sport, Leo Varadkar, in 2013 when he agreed with the Joint Oireachtas Committee on Transport and Communications to provide draft statutory instruments from his Department arising from EU legislation (and explanatory notes) at least one month before they were due to be signed into law. Recommendations from the Committee were to be provided for the Minister within two weeks. The Minister undertook to consider fully the recommendations and comply with them or to explain fully why he would not.63

The role of the Oireachtas at EU level in relation to policy-​making and law-​making in the field of European affairs The Oireachtas EU-​level role concerning legislating and policy-​making differs from its role at national level. At national level, parliament’s interlocutor will usually be the Government, normally vested with full policy-​determining power. At EU level, parliament’s interlocutor does not have the same function. Government ministers are involved in EU policy-​making. But, they do not enjoy the same role as at national level. A minister is but one voice among twenty-​eight in the Council: a very much reduced share of a very much increased decision-​ making competence. Indeed, in decisions which are taken by qualified majority vote, it is possible (even if rare)64 for the Government itself to be outvoted at Council level. Thus the national parliament seeks either to influence an executive which plays a radically different role to its national-​level role or alternatively

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to influence the EU legislature, or a component institution in the form of the Council, the Commission or the European Parliament. A series of roles are envisaged for national parliaments in relation to European-​ level decision-​making. Rendering ministers accountable

The first and most significant European-​level role undertaken by national parliaments is that of making ministers accountable for lawmaking activity at the level of the Council of the EU. This was a task fulfilled poorly by the Oireachtas in the 30th Dáil.The only Ministers who appeared habitually before the Oireachtas Committee were the Minister for Foreign Affairs and the Minister of State for European Affairs, who appeared relatively frequently before the Joint Oireachtas Committee on European Affairs. This was notwithstanding the supposed arrangement (made after the defeat of the first Nice Treaty referendum) that Government ministers, or ministers of state make themselves available for discussions with Oireachtas Committees, in particular before Council meetings. At the time of the adoption of the 2002 Act, the Government of the day is understood to have suggested that the norm be for a Minister to appear before the relevant sectoral committee in the week before the relevant Council meeting.65 In the 30th Dáil, this suggestion was acted upon only by a tiny minority of Ministers or Oireachtas Committees.The programme for government adopted at the beginning of the 31st Dáil in 2011 undertook that “all Ministers will be obliged to appear before their respective Committees or before the Committee on European Affairs prior to travelling to Brussels for meetings of the Council where decisions are made”.66 In reality, however, no change remotely approaching this level was ever achieved. In reality, the frequency of meetings continued to be a matter for agreement between each Minister and the relevant Committee. The result was that only twelve pre-​Council briefings were held in 2015 (the most recent year in which statistics were available at the time of writing) in respect of the seventy-​eight Council meetings,67 a briefing rate of only 15%.68 Scrutiny of draft European legislation

Secondly, the Oireachtas scrutinises draft European laws. In the 30th Dáil, this task was centralised in the Joint Oireachtas Committee on European Scrutiny. In the 31st, it was decentralised and carried out by sectoral committees, the Scrutiny Committee having by then been abolished. Rather like rendering Government ministers accountable, the scrutiny of EU legislation is a function which could also be described as a national-​level one, particularly since it is a relatively infrequent event for scrutiny reports to be called to the attention of decision-​makers at European level, although a mechanism now exists in the shape of the political dialogue for doing so. Political

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dialogue was used infrequently in the 31st Dáil period, however: in 2015, it was used only nine times and in 2014, on just eight occasions.69 Moreover, such use as was made of it was effected by a very small number of committees. The topic is returned to below. There is evidence that proposals are not necessarily subjected to extensive Oireachtas scrutiny. Although 362 EU proposals of various kinds70 were considered by various Oireachtas joint committees in 2015 (the latest year for which comprehensive figures are available), only 43 (11.5%) were deemed to require any further scrutiny. The length of time spent considering EU scrutiny issues by sectoral committees in the 31st Dáil period was normally minimal, with scrutiny confined either to the beginning or the end of committee meetings principally dedicated to other tasks.71 Consideration of major EU policy issues

A third European-​level Oireachtas role is the consideration of major EU policy initiatives e.g., European Commission Green and White Papers. This function was largely carried out by the Joint Oireachtas Committee on EU Affairs in the lifetime of the 30th Dáil. Consideration of EU policy decisions was sectoralised in the 31st Dáil. However, 2015 saw the production of only eight very broadly defined “reports” on EU matters by joint Oireachtas committees.72 Three of these (38%) were produced by the EU Affairs Committee, and a further five by one committee (the Joint Committee on Agriculture, Food and the Marine). This seems to indicate that the high degree of activity in European issues, spread across Dáil committees, hoped for when mainstreaming was introduced has not yet transpired. Contributing to the “political dialogue” at EU level

A fourth European-​level role for national parliaments is that of contributing directly to the policy-​making dialogue at European level. This role (returned to in detail in the text below) has been facilitated by the introduction of the system of so-​called “political dialogue” with the European Commission from 2006,73 subsequently underpinned by strong information rights enjoyed by national parliaments under Lisbon Protocols No. 174 and No 2.75 The Oireachtas has thus gained the assurance that its views will be heard by the Commission and replied to (even if the adequacy of the replies has not always been inspiring). The Oireachtas has engaged in political dialogue at a relatively low level since its inception. In the 31st Dáil period, this continued to be so. In 2015, the most recent year in respect of which statistics existed at the time of writing, political contributions were made only nine times and in 2014, only eight.76 Nor is making such contributions a widespread activity, being mainly confined to just a few joint committees.77

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Operating the subsidiarity review mechanism

Fifthly, the Oireachtas has the functions assigned to it by European law under the subsidiarity review mechanism.78 The mechanism involves either House sending to the Presidents of the European Parliament, Council and European Commission a reasoned opinion stating why it considers that a draft law does not comply with subsidiarity. A resolution of the House in question is required.79 This mechanism and the specific mode of its implementation in the Irish legal system are examined in detail in Chapters 1 and 4 of this book. It has been used very sparingly by the Houses. A reasoned opinion has been delivered on only four occasions since the mechanism became part of EU primary law: once in 2011, then three times in 2013. At the time of writing, no reasoned opinion had been delivered in the years since then. Requesting proceedings to be brought in respect of subsidiarity violations

Sixthly, either House may notify the Minister in writing80 where it takes the view an act of an EU institution infringes subsidiarity and wants review proceedings to be brought in the Court of Justice. The Minister is required, as soon as may be after being so notified, to arrange for such proceedings to be brought.81 This mechanism and its implementation were examined in Chapters  1 and 4. The Oireachtas has never yet threatened to bring such proceedings to the Court on grounds of subsidiarity concerns. Most TDs would scarcely be aware of the existence of this possibility. Ireland’s system of tight party political control would make litigation a most unlikely prospect if the government opposed such a step. Receiving, processing and considering documentation

A seventh European-​level role carried out by the Oireachtas is that of receiving, processing and considering the many documents pouring in under Lisbon Protocols No 182 and No 2.83 This particular role is obviously linked to others the Oireachtas enjoys e.g., contributing to the political dialogue and operating the subsidiarity review mechanism. The present Oireachtas procedure is decentralised to the extent that EU documents such as Commission consultation documents (green and white papers and communications), the Commission’s Annual legislative programme and other instruments of legislative planning or policy (including draft legislative acts and Council agendas and outcomes) (all supplied directly by the Commission under Article 1 of Protocol No. 1)84 are automatically referred to the appropriate Oireachtas Committee, as are certain other documents supplied under the Protocol such as e.g., the annual report of the Court of Auditors.85 The relevant Committee can then decide what it wishes to do in terms of e.g., legislative scrutiny and the other roles it fulfils. Since 2013, a mild degree of

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coordination has been provided by giving each Committee the opportunity to identify its own priorities from the European Commission’s Work Programme in the Oireachtas Committees’ EU Scrutiny Work Programme (compiled annually by the Joint Committee on EU Affairs).86 There is little constraint on committees in this however, as the list is non-​exhaustive and there is also a non-​priority list of activities. Apart from such information processing, a weekly report listing the documents received is laid in the Oireachtas library by the Clerks of the Houses, published online and referred to on the weekly Order Paper, so as to facilitate individual Oireachtas members. The weekly report also mentions reasoned opinions and other documents sent by national parliaments to the Commission, as well as communications concerning ongoing negotiations on EU draft legislative acts.87 Contributing to amendment process of constitutive Treaties

Eighthly, since late 2009, Article 48 TEU envisages a far greater role for national parliaments in the process of amending the founding Treaties of the EU than was the case pre-​Lisbon. As was seen in Chapters 1 and 4, the role for national parliaments now includes (a)  being notified of proposed amendments;88 (b) providing representatives to take part in conventions to consider proposed amendments and make recommendations in relation to them;89 (c) approval of proposed amendments or of them in accordance with national constitutional requirements, as the case may be (depending on the Treaty amendment procedure used);90 and (d) in effect, each of the Houses of the Oireachtas exercising a veto over the deployment of the so-​called passerelles (which involve switches to qualified majority voting and to the “ordinary legislative procedure” which involves co-​decision rights for the European Parliament).91 Broadly speaking, regarding the last of these, either House may, not later than six months after receiving an Article 48(7) TEU notification, pass a resolution opposing the adoption of the decision to which the notification relates.92 The effect is that the decision is not to be adopted.93 Contributing to process of accession of new member states

A ninth aspect of parliament’s EU-​related functions since 2009 is its role regarding the accession of new states to the EU. This involves a role at both the beginning and the end of the admission process. Under Article 49 TEU, any European state which respects and is committed to promoting the values on which the Union is founded may apply to become a member. National parliaments must be notified of such applications, thereby facilitating discussion of them at an early stage.

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The eventual conditions of admission (and adjustments to the founding Treaties) are required to be the subject of an agreement between existing member states and the applicant state. This must be submitted for ratification by all contracting States in accordance with their respective constitutional requirements. In Ireland, as has been seen in the text above, the accession of new member states has always also been accompanied by legislation to amend the European Communities Act 1972. The most recent example of this was the European Communities (Amendment) Act 2012, the long title of which describes it, as inter alia “an Act to amend the European Communities Act 1972, so as to provide that… the Treaty concerning the accession of the Republic of Croatia to the EU, done at Brussels on the 9th day of December 2012… shall be part of the domestic law of the State”.

The parliamentary role in establishing accountability on the part of Government in relation to European policy matters: special constitutional, statutory and political rules Parliament also has a role in establishing accountability on the part of the Government. There is some overlap here with the legislative role of parliament (looked at in the text above), since that too provides a check on the executive. Special rules exist for establishing accountability concerning various European policy questions. These rules are found in the Constitution, in statute and in political arrangements.

Constitutional provisions imposing accountability on the government in relation to European policy-​related decisions For certain European policy-​related decisions, approval of the Houses of the Oireachtas is required by the Constitution. The amendments made to the Constitution in order to facilitate ratification of the Lisbon Treaty have made  a significant difference in this regard. They have been examined in greater detail in Chapter  1 of this book and are therefore only briefly discussed again here. Approval of any opting into enhanced cooperation

By virtue of Article 29.4.7° of the Constitution,94 any exercise by the State of options or discretions under Article 20 TEU is subject to the prior approval of both Houses. (Article 20 TEU provides for member states engaging in “enhanced cooperation” with one another.)

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Approval of any use of a passerelle

As was seen in the text above, under Article 29.4.8° of the Constitution the agreement by the Irish State to any decision95 authorising the Council of the EU to act other than by unanimity,96 or authorising the adoption of the ordinary legislative procedure (i.e., co-​decision),97 is made subject to the prior approval of both Houses. Approval of opting into Schengen Protocol provisions or proposals

Also under Article 29.4.7° of the Constitution,98 any exercise by the State of options or discretions under Protocol (No 19) on the Schengen Acquis Integrated into the Framework of the European Union is subject to the prior approval of both Houses. Under the Schengen Protocol, Ireland may at any time request to take part in some or all of the provisions of the Schengen acquis. The Council of Ministers is required to decide on the request by unanimity.99 (Proposals to build upon the Schengen acquis are subject to a more liberal regime, involving a prima facie right to accede.)100 Approval of any exercise of options under Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice

Article 29.4.7° of the Constitution101 also provides that any exercise by the State of options or discretions under Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice is subject to the prior approval of both Houses. This includes the option that the Protocol shall, wholly or partly, cease to apply to the State. Protocol (No. 21)  was originally to protect the common travel area with the UK, but since the entry into force of the Lisbon Treaty serves a seemingly broader agenda, providing for the prima facie exclusion of Ireland from provisions concerning the area of freedom, security and justice. It provides, inter alia, that none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union [viz., the Treaty Title concerning the area of freedom, security and justice], no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland.102

Provision is made in the Protocol (a) that Ireland within three months of a proposal or initiative being presented to the Council under Title V, may notify its wish to take part in its adoption and application, whereupon it shall be entitled to do so; (b)  that Ireland at any time after the adoption of a measure under

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Title V may notify that it wishes to accept that measure (although its ability to do so is conditional on unanimous agreement of the member states who have accepted)103; and (c) that Ireland may notify the Council in writing that it no longer wishes to be covered by the Protocol’s terms, in which case, Title V’s provisions will then apply to Ireland.104 The Supreme Court judgment in Iqbal v. Minister for Justice105 demonstrated considerable judicial deference to the will of the Houses in opting in to the adoption of a proposed measure. Thus the Courts will only invalidate an opt-​in to a subsequently-​amended text if there is “such significant departure from the approved text as to warrant the conclusion that the constitutionally necessary prior approval had not been given”.106 The Article 29.4.7°(iii) procedure is triggered when the Department of Justice, following consultations with the Attorney General’s Office, indicates that an opt-​in motion under Title V should be considered by the Joint Committee on Justice and Equality.107 Motions were then –​nominally –​considered by the full Houses: in reality, it was far from unusual for them to be simply adopted without any debate at all taking place beyond that which had already occurred in the Joint Committee.108 The extent to which EU-​level justice and home affairs issues could dominate the agenda of the then Joint Committee on Justice, Defence and Women’s Rights in the 30th Dáil period because of various requirements of Oireachtas approval is seen in the fact that of nineteen topics considered at the ten Committee meetings in the sample year of 2009, fourteen of them (i.e., 74%) involved consideration of some such issue. Of these fourteen topics, eleven involved opt-​in resolutions (with the remaining three involving more general justice or home affairs issues). This made this Joint Committee the sectoral Committee with its agenda most dominated by EU-​related issues in the 30th Dáil.109 Taking 2015 as a sample year in the 31st Dáil, this seems to have been a particularly lean year insofar as concerns Ireland opting into measures in the justice and home affairs field. Only one opting-​in motion was considered.110 Perhaps too much should not be read into that, as there are variations in activity from year to year. However, the previous year (2014) saw just four such motions.111 (As seen below, other EU-​related aspects of this Committee’s work also declined in the 31st Dáil, somewhat paradoxically for a Dáil period which saw a mainstreaming process introduced.) Ireland’s having such an “opt-​out with an opt-​in” arrangement was controversial.112 Article 8 of Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security And Justice113 provides that “Ireland may notify the Council in writing that it no longer wishes to be covered by the Protocol’s terms. In that case, the normal treaty provisions will apply to Ireland”. Further acknowledgment is found in Declaration No. 56 on Article 3

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of the Protocol,114 in which Ireland affirmed its commitment to the Union as an area of freedom, security and justice and announced that it intended to review the operation of Protocol arrangements within three years of the entry into force of the Lisbon Treaty. The 2011 programme for government contained a commitment to “enhance the Irish role in EU judicial and home affairs cooperation”.115 However, notwithstanding this commitment, the “opt-​out with an opt-​in” arrangement was not terminated. Should the Government wish to end it at some future point, Article 29.4.7° of the Constitution requires the prior approval of both Houses. Approval of participation by the Irish State in specified forms of cooperation in the justice and home affairs field

Under Article 29.4.8° of the Constitution,116 the prior approval of both Houses is required for the Irish state’s agreement to certain specified forms of cooperation in justice and home affairs, namely: - the establishment by directive of minimum rules on specific aspects of criminal procedure (under Art. 82(2)TFEU);117 - the establishment by directive of minimum rules concerning the definition of criminal offences (under Art. 83(1) TFEU);118 - the establishment by regulation of a European Public Prosecutor’s Office (under Article 86(1) TFEU);119 and - the extension of the powers of the Office of the European Public Prosecutor to include certain serious crimes (under Article 86(4) TFEU).120 The existence of these requirements reflects the highly (and arguably excessively) conservative approach adopted in Ireland to European justice and home affairs cooperation, the reasons for which appear to be based on concerns about the supposedly highly distinctive nature of common law systems.

Statutory provisions imposing accountability on the government in relation to European policy-​related decisions Beyond the Constitutional rules outlined above requiring the approval of both Houses for the Irish Government taking various steps at EU level, accountability is also imposed by statutory provisions. Entitlement to twice-​yearly report from each Government Minister

S. 2(5) of the European Union (Scrutiny) Act 2002 provides that every Government Minister make a report to each House not less than twice yearly regarding measures, proposed measures and other developments concerning the EU in relation to which he or she performs functions.

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Such reports have tended to comprise two parts, the first giving an overview of significant EU-​level developments in a Department’s policy area during the relevant six months, the second giving an update on the status of all EU legislative proposals being negotiated within the remit of the Department. In the 30th Dáil, once the reports of all fifteen Departments had been considered, the Joint Committee published its own composite report (with all Departmental reports contained in a lengthy appendix).121 The system of six-​monthly reports, while probably useful in ensuring some level of information, has nonetheless been a largely retrospective exercise, even if some attempt was made with time to include a forward-​looking element.122 The Joint Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs observed that “the six-​ monthly reports prepared by Departments for the Oireachtas in accordance with the 2002 Act, which now include a forward-​looking element, are a useful planning tool and help to guide the Committees on what should be prioritised in the coming six months.”123 This was probably an over-​optimistic assessment. Such reports are not always even submitted. In 2015 (the last year for which figures are available at the time of writing, all sixteen Government departments submitted at least one such report)124 but the previous year only twelve of sixteen Departments did so (although all were statutorily obliged to submit two).125 Secondly, when discussed by a Committee, six-​monthly reports are usually delivered by officials rather than by the Minister, reducing or eliminating the ability of Oireachtas members to demand real political accountability. Even securing the presence of top-​ranking officials can be infrequent. In 2015, just one single Secretary General attended an Oireachtas committee to discuss the six-​monthly report.126 The previous year, a mere four did so.127 Thirdly, the fact that reports are generally received by a Committee128 rather than by the House in plenary session, although it may facilitate discussion, also limits awareness of the report to a small group of Oireachtas members, and therefore the usefulness of the exercise. Fourthly, in practice, much of what is found in the reports is retrospective, providing little political meat for discussion. Hence for example, of sixteen reports submitted by Government Departments in 2015, only eleven actually related to 2015 (all of these to the January to June period).129 Fifthly, the reports frequently arrive several months late, further reducing their value. Echoes of these difficulties could be seen in the recommendation of the Joint Sub-​Committee that a greater emphasis should be placed on the six-​monthly reports and their timely submission, and in particular the reports’ overview of progress made in legislative

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proposals considered by the Oireachtas and their look ahead to the priorities of the coming six months. Therefore, the reporting requirements under the 2002 Act should be streamlined in order to meet the needs of the Oireachtas. Such a change would also lighten the administrative burden.130

By 2014, however, the Joint Committee on EU Affairs downscaled its ambitions, arguing that “one annual report submitted in a timely way by Departments (within six weeks of year-​end) in respect of the previous year, may suffice for the purposes envisaged under the Act, instead of two separate six-​monthly reports”.131 This approach (which would require amendment of the 2002 Act) is understood to have enjoyed widespread support within the executive. Implicitly acknowledging the ongoing problems with the present system, the Committee quickly added that this rationalisation should only be considered where Departments agreed that agreed deadlines for submission of reports would be strictly adhered to, and that the relevant Secretary General would be expected to attend the relevant Committee to discuss the report shortly thereafter.132 Annual Government report on developments in the EU

Under s. 5 of the European Communities Act 1972 (as substituted by s. 4 of the 2002 Act) the Government is obliged to make a report to each House on developments in the EU each year.133 The usefulness of this step has been questioned. For example, the 2010 Report of the Joint Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs expressed the Joint Sub-​Committee’s belief that “the annual report is historical and therefore its purpose is limited”.134 The Sub-​ Committee went on to recommend that there should no longer be a requirement to prepare an annual report.135 By 2014, however, as just noted, the Joint Committee on EU Affairs expressed its preference that six-​monthly reports cease, and annual reports continue. Regardless which view is taken, the level of duplication involved in the executive producing both six-​monthly and annual reports is apparent.136

A political arrangement imposing accountability on the Government in relation to a European policy-​related decision: the Seville Declaration Government accountability in European matters is also imposed by a political  arrangement:  the “National Declaration by Ireland” at the Seville European Council on 21 June 2002, made as part of the Irish Government’s response to the initial “no” vote concerning the Nice Treaty in a June 2001 referendum. Para. 6 of the Seville Declaration states that

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Ireland reiterates that the participation of contingents of the Irish Defence Forces in overseas operations, including those carried out under the European security and defence policy, requires (a)  the authorisation of the operation by the Security Council or the General Assembly of the United Nations (b) the agreement of the Irish Government and (c) the approval of Dáil Éireann, in accordance with Irish law.137

Although the terms of the Declaration are not legally binding, it is regarded as politically binding. In practice, any deployment of Irish troops abroad is made subject to a vote of approval in Dáil Éireann.

Establishing accountability on the part of government in European matters: the role of committees in the 30th Dáil Committees: some general observations Committees have been described as “the key mechanism by which a legislature develops the ability to counter-​balance the many advantages of the executive in terms of policy”.138 It has been argued that “if parliament is to have any chance at influencing the Government’s legislative process and holding both ministers and their agent accountable, a well resourced committee system is a minimum, if not sufficient, requirement”.139 A significant role in exacting accountability from the Government in European matters, and in seeking to influence European policy in other ways, was allocated to Oireachtas committees both in the 30th Dáil and in the preceding Dálaí. The principal committees involved were (a)  the Joint Committee on European Affairs; (b)  the Joint Oireachtas Committee on European Scrutiny; and (c)  sectoral Oireachtas committees. Each will be examined briefly in turn. First, however, some general observations concerning Oireachtas committees are appropriate. Oireachtas committees come in two varieties:  (i) select committees, which are committees of one or either House; and (ii) joint committees which are formed of members of select committees from both Houses. Thus, for example, some three months after the election of the 31st Dáil,140 on 8 June 2011 the Dáil ordered that a select committee (to be called the Select Committee on EU Affairs) be appointed, consisting of nine members of the Dáil,141 and that it be joined with a select committee to be appointed by Seanad Éireann to form a Joint Committee on EU Affairs.142 Eight days later, on 16 June 2011, Seanad Éireann duly ordered a select committee consisting of five of its members to be appointed to be joined with the Dáil Select Committee to form this Joint Committee on EU Affairs.143

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Select committees have a role of their own, which is distinct from their role in providing the membership of joint Oireachtas committees.Thus, for example, when a Bill is going through committee stage in the Dáil and not being considered by a committee of the full House, it will be considered by a Dáil select committee (i.e., rather than a joint Oireachtas committee, on which there are senators). Similarly, where the Dáil has powers above and beyond those of the Seanad (e.g., in finance and international agreements)144 the exercise of these may well involve in some way a select committee of the Dáil, but will not involve a joint Oireachtas committee. A distinction must also be drawn between discretionary and non-​discretionary work which such committees carry out. Committees agree their own work programme. For many committees (including the Joint Committee on EU Affairs during the lifetime of the 31st Dáil)145 the work programme is prepared at the start of each year, detailing the activities to be undertaken during the year ahead. Some of this programme is discretionary. Some is not. Certain committees have a greater capacity for discretionary work than others. A committee with a heavy legislative workload will have a correspondingly reduced capacity for discretionary work, including EU-​related work. The discretionary element (and therefore the work programme as a whole) is very frequently departed from in the course of the year because some major political issue has arisen. Of the two Oireachtas committees concerned with European affairs in the 30th Dáil period (only one of which survived into the 31st Dáil, the Joint Committee on European Affairs, albeit with the slightly modified title of the Joint Committee on European Union Affairs), one Oireachtas staff interviewee observed to the writer, the agenda of the Joint Oireachtas Committee on European Affairs is very largely discretionary. The Dáil does not ask them to deal with much legislation because there is very little European-​related legislation.The Foreign Affairs Committee deals with the estimate for foreign affairs. So the Dáil asks the Joint Committee on European Affairs to do very little work, other than things like examine what Ireland’s future in Europe is going to look like –​in relation to which they set up a sub-​committee to look at the issue and report back to them. The Joint Oireachtas Committee on European Scrutiny is completely different.They have very little discretionary time.Their workload is dictated by the number of proposals coming from Europe. So the Joint Committee on European Affairs has a lot of discretionary time, the Joint Committee on European Scrutiny very little.146

As was seen in Chapter 3, the Oireachtas committee system is mostly of recent vintage. (The Joint Oireachtas Committee on European Affairs (or, since 2011, European Union Affairs), for example, was first established in 1995.) The committee system has developed considerably, but is not yet a system as embedded

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as committee systems in many other parliaments. Unsurprisingly, given the lack of electoral reward for committee work and the contrasting premium put on local constituency work, full-​hearted commitment by all Irish parliamentarians to such work is far from the norm. Martin has opined that apart from legal and financial barriers to the further evolution of committees within the Oireachtas, perhaps the greatest barrier to an enhanced committee system is the inability of TDs to dedicate appropriate time and resources to committee work at the expense of electorally necessary constituency work. The lack of outputs by some committees, varied levels of attendance by parliamentarians, and instances of disengagement with people appearing before the committee will be difficult to overcome while TDs are focused on constituency at the expense of a national political role.147

The question of the relative prestige of Oireachtas committees also merits mention: Oireachtas committees vary in terms of the attractiveness which membership and participation in them has for TDs and senators. According to the source interviewed above: in terms of their prestige as committees, if you used a football league-​table analogy, the two European affairs committees would be high mid-​table, but they would certainly not be Champions’ League teams. The most high-​prestige committee is the Public Accounts Committee. The members like it –​not necessarily because the work it does is more important than that done by other committees, but because it gives one access to the areas the media are interested in.148

The lack of engagement by many parliamentarians in committee work has made arguments in favour of empowering Oireachtas committees more difficult to make than would otherwise be the case. These arguments are returned in the text below, but there is obviously some danger of a chicken-​and-​egg situation arising if empowerment of parliamentary committees is made dependent on evidence of commitment of parliamentarians to the committee process, when the commitment of parliamentarians is scarcely likely to develop in favour of committees which have very few real powers. The radical step of empowering, by amending Article 15.10 of the Constitution, each House to conduct inquiries into any matter, in the course of which the conduct of any person could be investigated and findings made in respect of such conduct, was decisively rejected in referendum held on 27 October 2011, but this had relatively little relevance in European policy matters in any case.149 Empowerment in this context relates more to Oireachtas committees’ powers to exact real accountability from the executive, for example by securing ministerial appearances before or after meetings of the Council of the EU. This topic is returned to below.

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There has been a gradual increase in the empowerment of Oireachtas committees over time. However, there are limits to how far this can go. Such limits include (a) the problem of securing adequate commitment from parliamentarians in relation to committee work; (b) the limited size of the Oireachtas (and thus the talent pool available from which to draw committee members);150 (c)  the lack of incentive for Government supporters in the Oireachtas to engage in anything more than monitoring scrutiny (i.e., demanding information on the Government’s actions) as opposed to political scrutiny (i.e., assessing how appropriate the Government approach is);151 (d)  the limited number of days on which the Oireachtas meets; (e) the lack of a selfish incentive for the Government, or, for that matter, an Opposition with realistic chances of being elected to Government, to favour increasing Oireachtas committees’ powers to secure ministerial accountability; and (f) the financial, staffing and organisational constraints that operate on committees, particularly in sometimes straitened financial circumstances. There have nonetheless been various forces exerting pressure in favour of empowering committees. These include (a)  the perceived need to respond to electoral concerns generally about parliament’s ability to exact accountability; (b) peer pressure, generated by the visibly better performance of national parliaments in other EU member states; and of course (c) legal changes, brought about, for example, by the coming into force of the Lisbon Treaty.

The Joint Oireachtas Committee on European (Union) Affairs Introduction: an historical note

The Joint Oireachtas Committee on European Affairs was first set up in March 1995. Membership, at least initially, was regarded as less prestigious than the Foreign Affairs Committee.152 However, the European Affairs Committee was to see itself moved at least temporarily to greater prominence as a result of successive initial referendum defeats of the Nice and Lisbon Treaties in 2001 and 2008. The two referendum defeats were to have major implications for the Joint Committee on European Affairs. As was seen in Chapter 3, the initial referendum defeat of the Nice Treaty led to, inter alia (a) the adoption of the European Union (Scrutiny) Act, 2002 and (b) (largely unfulfilled) undertakings regarding changes in ministerial behaviour prior to meetings of the Council. Both reforms resulted in increased powers for the Committee. Those conferred by the 2002 Act were devolved to its Sub-​Committee on European Scrutiny, then, in the 30th Dáil (elected in 2007) transferred to a new Joint Committee on European Scrutiny, considered below.

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Another referendum defeat in June 2008, concerning the Lisbon Treaty, led the Joint Committee on European Affairs to establish the Sub-​Committee on Ireland’s Future in the European Union, chaired by the then  Senator Paschal Donohoe.153 After extensive hearings, this sub-​committee produced an extensive and well-​received report in November 2008, which included consideration of the Oireachtas role in European matters.154 The entry into force of the Lisbon Treaty in December 2009, with its new powers for national parliaments,155 led to more powers being conferred on the Committee, and helped generate a further sub-​committee report, focused entirely on the role of the Oireachtas in European affairs, chaired by Fine Gael TD Lucinda Creighton.156 Both reports are considered in Chapter  6.157 The Joint Committee itself was renamed the Joint Committee on European Union Affairs in 2011 when a Fine Gael–​Labour coalition assumed power. The Joint Committee on European Union Affairs: further preliminary reflections

The two most important functions of the Joint Committee on European Union Affairs, (a) the holding of ministers to account in respect of their activities in the Council of the EU, and (b) its delivery of Reports, are examined below. Some preliminary observations may be offered here. The first is that one of the most significant advantages of the Joint Committee was that, unlike its predecessor committee, the Joint Oireachtas Committee on the Secondary Legislation of the European Communities, it was not rigidly tied to the EU’s legislative agenda. This was significant: this restriction had effectively relegated the earlier Joint Committee to political irrelevance. However, the freedom to determine its own agenda given to the new Joint Committee on European Affairs carried its own risk viz., a disconnect growing over time between the Committee’s deliberations and the EU’s legislative agenda. A  certain degree of eclecticism in issues which the Joint Committee addressed did become a feature of its engagement with European affairs during the 30th Dáil period.158 A  study conducted in 2010 observed disapprovingly that given the centrality of economic issues in Ireland and across the EU throughout 2010, it would be reasonable to conclude that this matter would have been of significant concern to the European Affairs Committee. However, the European Affairs Oireachtas Committee discussed issues related to Irish and European finances and the IMF on only five occasions in 2010… Separately, foreign affairs related issues were discussed a total of nine times. However, within these nine foreign affairs discussions, the Middle East and Israel were the focus of attention on a total of six occasions. This means that 67% of the discussion on foreign affairs within the European Affairs Committee in 2010 focused on concerns about the Middle East.159

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This is a serious criticism, particularly in a small country with only limited parliamentary resources to dedicate to EU matters. That much said, the Joint Committee had a difficult balance to achieve: seeking relevance to the national political agenda and simultaneously linkage to the EU level policy-​making agenda. A second observation concerns the number of meetings held and attendance at those meetings during the period of the 30th Dáil. In the sample year 2010, the Joint Committee had thirty-​six public meetings. (This was in addition to a number of private meetings and six meetings of the Creighton Sub-​Committee as well.)160 This is indicative of a considerable degree of commitment by members. It was also consistent with a long-​term trend: an earlier study noted that in the 29th Dáil’s five-​year existence (2002–​07), the Joint Committee met 142 times, the largest number of meetings for any comparable committee,161 translating to an average twenty-​eight meetings per year. The Joint Committee generally met once a week on days when the Dáil and Seanad were in session (viz., Tuesdays, Wednesdays or Thursdays). On twenty-​six occasions in the whole five-​year term (less than 20% of its total of meetings) it met either when the Houses were not in session, or on Mondays or Fridays, when the Houses were in session, but not sitting. Sitting outside Dáil and Seanad sitting days was therefore the exception rather than the rule. Sitting on the same day as the Dáil or Seanad may have helped Committee attendance rates, but also involved some disruption with members frequently leaving Committee meetings to speak in one or other House.162 In the 30th Dáil, the Joint Committee had twenty-​two members. Attendance, however (as with most committees) was normally far lower than actual membership. The Committee had a quorum of only five (with at least one member from either House),163 and in practice relied on a dedicated cross-​party minority of its membership to get its work done. An attendance study of parliamentary committees in 2010 indicated that the Committee had an average attendance rate of 58% (with just under thirteen of twenty-​two members attending). This placed it in a lowly seventeenth position of twenty-​one Committees surveyed.164 (Carroll’s study of the Joint Committee in the 29th Dáil indicated a slightly better average attendance of 62%, with substitutes attending on a further 2% of occasions, making a 36% average absence rate. In other words, an average of 11.2 of seventeen Committee members attended meetings.)165 The numbers of meetings of the Committee remained high in the 31st Dáil period (when it was renamed the Joint Committee on European Union Affairs.166 Hence, for example, there were thirty-​one meetings of the Joint Committee in both 2014 and 2015. Average attendance was comparable with the rates seen in the 30th Dáil. In the sample year 2015 (the latest in respect of which comprehensive data is available) the average attendance level at meetings was 8.4 of its 14 members, giving an overall attendance rate of just 60%. Again however, considerable dedication to attendance was clearly shown by a core membership.

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Attendance records can be misleading, nonetheless, since they do not measure the level of engagement of members. Some idea of this can be gained from the number of them who speak. In terms of speaking contributions, two random examples may be taken. The Joint Committee meeting of 14 December 2010 discussed two issues (the proposed Single Market Act and the EFSF and EFSM bailout mechanisms). The recorded attendance was thirteen, of whom eight made a verbal contribution over the one-​and-​a-​half hour period the meeting lasted. A 1 October 2015 Committee meeting discussed the economic and monetary union. Recorded attendance at this meeting was seven. Five members spoke in just under two hours. Even using the number of interventions as a guide to engagement can mislead, however, since contributions can be well or poorly prepared. Some Committee members clearly did prepare for meetings. But, notwithstanding the improved research support which was available thanks to the development of the Oireachtas Library and Research Service, it was not clear that all did so. Attendance records could also exaggerate the level of commitment in that they do not record when a member had entered and left the room. Presence merely for a few minutes sufficed for the attendance of members to be recorded: in this writer’s experience of observing the Committee in operation, it frequently had to, although this was not the case with the core minority of active members on which the Committee depended for much of its useful activity. This was true of both the 30th Dáil period and the 31st, although the latter period saw some improvements or continued positive trends. Earlier eclecticism in subject choices declined and the topics debated (listed in the Committee’s Annual Reports) manifested a clear concentration on issues important to Ireland’s relationship with the EU. In 2015, these included Brexit, the Commission Work Programme, the politically-​controversial proposed Transatlantic Trade and Investment Partnership, the European Semester and the National Reform Programme, European migration policy, the priorities of states holding the six-​ month Council presidency and briefings regarding forthcoming meetings of the General Council of the EU.167 Securing ministerial accountability in the Council of the EU: ministerial briefings

One aspect of Oireachtas oversight of the executive introduced in 2002 comprised the supposed arrangement whereby Government ministers, or ministers of state would make themselves available (in particular before Council or European Council meetings) for discussions with the EU Committee or the relevant sectoral committee, as appropriate. This commitment involved practice, not law. The Government declined to provide for it in the 2002 Act. As has already been noted, the then Government is understood to have suggested that

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the norm should be for a Minister to be requested to appear before the relevant sectoral committee in the week before a Council meeting.168 Any such suggestion was only ever acted upon by a tiny minority of Government ministers. The committee in which it came closest to being fulfilled during the 30th Dáil period was the Joint Committee on European Affairs. Prior to General Affairs and Foreign Affairs Council meetings,169 the Joint Oireachtas Committee on European Affairs met either with the Minister for Foreign Affairs or the Minister of State for European Affairs to discuss the Council’s agenda. There was, however, for a long time an element of “doubling up” on the part of ministers in terms of packaging these briefings as being for both the General Affairs and Foreign Affairs Councils. This became less possible over time, for as the foreign affairs role of the EU increased, more Foreign Affairs Council meetings started being held more frequently on days other than a day consecutive to a General Affairs Council meeting. Already by 2010, five Foreign Affairs Councils were held on days not consecutive to those on which General Affairs Councils were held. No ministerial briefing was provided to the Joint Committee on European Affairs (or on Foreign Affairs) in respect of any of these. The level of briefings provided in 2006 and 2007 was so low that the Oireachtas can not be said to have been kept informed in advance of General Affairs Council meetings in these two years. In 2006, the Joint Committee on European Affairs held six meetings in advance of General Affairs Council meetings, less than half such Council meetings at European level in that year.170 In 2007, an election year, no parliamentary control at all was exercised in relation to ministerial activity in General Affairs Council for most of the year. (Only two ministerial briefings occurred, in mid-​November and early December.) This calls into question Oireachtas interest and ability to ensure Government accountability in an election year: important business at EU level does not discontinue merely because an election happens to occur in Ireland. Only in 2009 was a ministerial briefing provided prior to all General Affairs meetings. In all other years of the 30th Dáil period, at least a fifth of the General Affairs Councils took place with no briefing having been provided to the Committee. In the worst of these years (2007), four fifths of such Councils took place with no briefing. The extent to which Committees were briefed depended much on the Minister’s attitude.The statistics from 2009–​10 appear to reflect the particularly diligent attitude to briefing the Oireachtas held by the then Minister for Foreign Affairs and the Minister of State for European Affairs.171 But there is no guarantee that any given Minister for Foreign or European Affairs will adopt a similar approach. The level of pre-​Council ministerial briefings from 2007 onwards (and thus taking in both the 30th and 31st Dáil periods) is show in Table 5.4. Perhaps surprisingly, the level of ex ante briefings of the Joint Committee of European (Union) Affairs was less in the 31st Dáil than in the 30th. However,

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Table 5.4.  Briefings in advance of General Affairs Council meetings 2007–​15a Year

2007 2008 2009 2010 2011 2012 2013 2014 2015

Number of General 10 Affairs Council meetings Number of 2 ministerial briefings

14

11

10

13

11

9

9

11

10

11

8

4b

7c

7d

5e

3

See generally for a schedule of General Affairs Council meetings www.consilium.europa.eu/​en/​ meetings/ ​ c alendar/​ ? frDt=&frDt_​ s ubmit=&toDt=&toDt_ ​ s ubmit=&cc%5B%5D=609&p=1&s tDt=20161004. For information on Joint Oireachtas Committee on European Affairs meetings, see http://​debates.oireachtas.ie/​committees/​ b Two other briefings, which were not, however, pre-​Council briefings, were also provided to the Joint Committee. c Four other briefings, which were not pre-​Council briefings, were also provided to the Joint Committee. d Two other briefings, which were not pre-​Council briefings, were also provided to the Joint Committee. e Three other briefings, which were not pre-​Council briefings, were also provided to the Joint Committee. a

although the number of pre-​Council meetings in 2012, 2013 and 2014 was below levels in the 30th Dáil, overall the number of ministerial appearances before the Joint Committee remained at a similar level. There may have been a tendency to regard any appearance before the Joint Committee as equivalent, although non-​pre-​Council briefings are unrelated to the ministerial activities in the General Council. By 2015, only three of eleven Council meetings were preceded by a briefing of the Joint Committee, the worst level since 2007. The experience of the 31st Dáil confirmed again that general election years tend to be poor ones for exercising accountability over Ministers attending General Councils. Before elections, Ministers and all other politicians, are busy campaigning. In the post-​election period, it generally takes months to establish Joint Committees. 2007, 2011 and 2015 (the latter part of which led up to an election in early 2016) are thus unsurprisingly the worst years for pre-​Council briefings visible in Table 5.4. Even as regards Council meetings in respect of which a ministerial briefing was provided in the 30th and 31st Dálaí, however, the extent of executive accountability secured was questionable. Ministers are not bound by Oireachtas committee positions, and the benefit of such meetings in providing ministers with additional information has been questioned. One Minister in the 2002–​07 Fianna Fáil–​Progressive Democrat coalition was prepared to assert to this writer that he had never heard a useful contribution made at any such Committee meeting. Meenan has cited a small number of examples of where opinions

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expressed at the Joint Oireachtas Committee on European Affairs clearly did affect Government policy (and indeed European policy, when Ireland held the Council Presidency at the relevant time).172 It does seem likely that, as Meenan has observed, “specific, well-​informed views, expressed in a consensual, cross-​ party setting” will tend to influence ministerial positions.173 On the other hand, particularly given what this writer observed on numerous occasions to be the lack of preparation of most (although not all) committee members for such briefings, it is not clear that well-​researched views are often made available to ministers. Carroll has accurately described the questioning of ministers at such meetings as “largely for the purpose of information gathering rather than seeking to influence policy”.174 The General Affairs Council is of course only one of ten formations in which the Council sits.The extent to which committees other than the Joint Committee on European Affairs were given ex ante briefings in the 30th and 31st Dáil will be examined below. Suffice it to say here that in neither Dáil period does the examination reveal a happy story. Reports

Much of the Committee’s time has been devoted to holding meetings, inviting speakers to appear before it and occasional study visits. It also produces reports on various issues. It would be unrealistic to expect the quantity of such reports to equal that produced by e.g., the House of Lords EU Select Committee,175 in that the latter Committee has greater financial resources, research support and more personnel (at both administrative and membership level) than the Joint Oireachtas Committee on EU Affairs. The Joint Committee has thus arguably always needed to be more selective. It is difficult to gain an accurate idea of how many reports in the ordinary sense of this word were produced prior to the 31st Dail, as the Committee’s own annual reports recording this information were themselves sporadic,176 sometimes years late177 and historically included under the rubric “report” documents which were not reports in any real sense.178 (Annual reports by the Joint Committee ceased entirely in the 30th Dáil period, before being revived (and regularly published) during the 31st Dáil.)179 The Committee’s annual output was small but increased over time. By 2000, however, it had had just five of its reports debated in one or either House.180 During the 30th Dáil (of 2007–​11) twenty-​four reports were apparently produced in just under four years, an average of just under six reports a year.181 In the 31st Dáil period (from February 2011 to February 2016), the Joint Committee contributed fifty-​one reports, averaging just over ten reports a year. This was a

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remarkable 26% of the entire Oireachtas Joint Committee output of 200 reports between 2011 and the 2016 elections, given that the Joint Committee was just one of fourteen Joint Committees (i.e., 7% of the total number of Committees). The production of such a high proportion of reports by the Committee reflects in part the large number of international meetings it must now engage in. It may also reflect the relatively high level of commitment of the core membership of Joint Committee to its task. As is seen in Tables  5.5 and 5.6 below, the production of reports was not evenly spread across either the 30th or 31st Dáil periods. Reflecting broader dysfunctionality in the Committee system during election years (and the slowness with which Joint Oireachtas Committees are constituted after an election),182 neither Dáil period saw many reports produced by the Joint Committee in the first calendar year of its existence. 2007 (after a February election) saw none. 2011 (after another February election) saw only two “reports” by the Joint Committee (one of which was really not a report, but rather that year’s work programme). Each Dáil period normally also sees major reductions in the productivity of the Joint Committee on European Affairs after three years, reflecting the need to campaign as elections draw near. This was certainly true of the 30th Dáil. Exceptionally, however, the end of the 31st Dáil period saw no reduction in the number of reports produced. This may have been due to the diligence of the Chairperson (Dominic Hannigan TD) in seeing a very large number of meeting Table 5.5.  Number of reports produced each year by the Joint Oireachtas Committee on European Affairs during the 30th Dáil Year

2007 2008 2009 2010 2011

Number of reports produced by the Joint Committee

0

5

13

6

0

Table 5.6.  Number of reports produced each year by the Joint Oireachtas Committee on European Affairs during the 31st Dáil Year Number of reports produced by the Joint Committee

2011 2012 2013 2014 2015 2016a 2

7

8

10

20

4

 This was only a one-​month period, it should be noted. The Dáil was dissolved by the President on 3 February 2016.

a

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reports completed in December 2015–​January 2016 before the election in early February.183 Quality counts, as well as quantity, however. Qualitatively, many reports produced by the Joint Committee over the years have been unimpressive. Historically, their subject matter could be eclectic. At times, the Committee seemed excessively distracted by the political issues of the day rather than systematically focusing on major issues of European integration184 (although this was certainly not the case during the 31st Dáil period). At times, the topics chosen for reports could be trivial185 or have a tenuous connection with EU affairs.186 Moreover, reports on particular substantive issues could vary considerably in their detail and quality.187 Occasionally, some “reports” produced by the Joint Committee over the years were so brief that they are more accurately characterised as resolutions.188 Several “reports” produced during all Dáil periods since the Committee’s initial foundation right up to the end of the 31st Dáil189 were really merely agenda-​setting documents such as work programmes, or lists of EU-​related scrutiny priorities for the Oireachtas committee system, for the coming year. A considerable proportion of reports were simply reports by delegations on meetings, conferences or study trips abroad. Although sometimes potentially useful (e.g., reports of COSAC meetings), they were not comparable to comprehensive reports on issues. Nonetheless, the Joint Committee and its Sub-​Committees have certainly produced some reports over time which have contributed significantly to EU-​related debates. Examples include the November 2008 Report of the Sub-​Committee on Ireland’s Future in the EU, Ireland’s Future in the European Union: Challenges, Issues and Options, the July 2010 Report of the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs,190 and the May 2012 Report of the Sub-​ Committee on the Referendum on the Intergovernmental Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. The use of a rapporteur for some reports seems to have positively affected their quality. A rapporteur system effectively invites one individual to take ownership of a report, and creates an incentive to doing the work involved well, because that individual’s name will be permanently linked to it. Rapporteur-​ driven reports by the Joint Committee on European Affairs have included its July 2010 Report, European Monetary Union: Challenges and Options (the rapporteur for which was Fine Gael Senator Paschal Donohoe);191 and its June 2010 Report, The Need for Strong EU Financial Regulation (the rapporteur for which was Fianna Fáil Senator John Hanafin). A more occasional, but also useful, phenomenon has been the Committee’s publication of reports written by external persons or groups, such as the

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October 2003 Report to the Oireachtas Joint Committee on European Affairs from the Advisory Group on the Role of the European Court of Auditors, a well-​considered report by an advisory group established by the Joint Committee;192 or the February 2003 Report of the Advisory Group to the Joint Committee on European Affairs, written by a group of eminent persons193 which made proposals for inclusion in the 2004 Irish Council and European Council Presidency’s programme concerning EU relations with developing countries. Other examples were the November 2002 Report by John Bruton T.D., Member on the Convention on the Future of Europe to the Joint Committee on European Affairs; and the November 2008 report Ireland’s Future in Europe: Scenarios and Implications194 which was commissioned by the Oireachtas Sub-​Committee on Ireland’s Future in the European Union and subsequently cited in the Sub-​Committee’s own report as having made an invaluable contribution to its work.195 Overall, the quality of such reports, like those coordinated by rapporteurs, has tended to be comparatively high.

Scrutinising proposed legislation in the 30th and 31st Dáil periods A further task conferred on the Oireachtas (and implemented through its committee structure) is scrutinising draft European legislation. Under s. 2(1) of the European Union (Scrutiny) Act 2002, as soon as practicable after a proposed measure is presented by the Commission of the European Communities or initiated by a Member State, as the case may be, the Minister196 shall cause a copy of the text concerned to be laid before each House of the Oireachtas together with a statement of the Minister outlining the content, purpose and likely implications for Ireland of the proposed measure and including such other information as he or she considers appropriate.

The 2002 Act provides for exemptions from these obligations if time does not suffice.197 In practice, when Commission draft measures are published, a Department prepares an information note, then submits this and the draft EU law to the Oireachtas.198 The note includes a summary of the proposed measure, its aims, its legal basis in the EU Treaties, the expected duration of negotiations, the draft measure’s expected implementation date and its implications for Ireland. Under Department of the Taoiseach guidelines, a Department concerned is supposed to do this within twenty days of publication by the European Commission.199

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Textbox 5.1.  Example of an information note Com (2010) 607 Final Information Note 1. Proposal To introduce flexibilities for tractor manufacturers regarding emission targets 2. Title Proposal for a Directive of the European Parliament and of the Council amending Directive 2000/​25/​EC as regards the provisions for tractors placed on the market under the flexibility scheme 3. Date of Council document 8 November 2010 4. Number of Council document 15935/​10 5. Number of Commission document COM (2010) 607 final 6. Dealt with in Brussels by Coreper Council (Competitiveness) 7. Department with primary responsibility Department of Agriculture, Fisheries and Food 8. Other Departments involved N/​A 9. Short summary and aim of the proposal The proposal is mainly technical in nature. Efforts at European level to reduce the level of emissions from engines in agricultural and forestry tractors have been ongoing for some time. As the levels set down are being reduced engine manufacturers require lead in time and information on these levels to facilitate the necessary research and development and manufacturing processes to be put in place. The current stage of emission limits applicable for type approval of the majority of compression ignition engines is referred to as Stage III A. The Directive currently provides that those limits will be replaced by the more stringent Stage III B limits, entering into force progressively as of 1st

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January 2011 with regard to the placing on the market and from 1st January 2010 as regards the type approval for those engines. Stage IV provides for limit values more stringent than Stage III B, and are scheduled to enter into force progressively as of 1st January 2013 as regards the type approval for those engines and as of 1st January 2014 with regard to the placing on the market. Recognising the global financial and economic crisis and its resultant impact on manufacturers of engines, the proposed Directive utilises provisions in Directive 2000/​25/​EC providing for a flexibility scheme to allow tractor manufacturers to purchase, in the period between the two emission stages mentioned, a limited quantity of engines that do not comply with the current limit values, but are approved to the nearest previous stage of emission limits. The specific limits of this flexibility scheme are set down in Annex 1 of the proposed Directive and are based on the number and size of engines. These measures reflect a temporary difficulty faced by the industry and will expire on 31st December 2013. 10. Legal basis of the proposal Article 114 of the Treaty on the Functioning of the European Union 11. Voting method QMV 12. Role of EP Ordinary Legislative Procedure (Co-​decision) 13. Category of Proposal Technical 14. Implications for Ireland Limited-​applicable to the manufacturers of tractor engines 15. Anticipated negotiating period 6 months 16. Proposed implementation date The new Directive will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. 17. Consequences for national legislation A Statutory Instrument will be required to give effect to the Council Directive 18. Method of Transposition into Irish Law Statutory Instrument

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19. Anticipated Transposition date Within the limits set down 20. Consequences for the EU budget in euros annually None 21. Contact name, telephone number and e-​mail address of official in Department with primary responsibility [Given] Date: 1 December 2010

The scrutiny provided for in the 2002 Act has been carried out under two different systems in the 30th and 31st Dáil periods, one centralised, the other decentralised. In the 30th Dáil period, the Joint Oireachtas Committee on European Scrutiny was established,200 seemingly for political reasons,201 assuming tasks that in the 29th Dáil had been carried out by a sub-​committee of the Joint Committee on European Affairs (the Sub-​Committee on European Scrutiny). Its modus operandi was to examine all measures in its meetings in public session and determine which required further scrutiny. If it decided that a measure warranted further scrutiny, it could choose how this should happen. • It could undertake the detailed examination itself, either as a paper-​based exercise or by holding public hearings with the Government and concerned stakeholders. • Alternatively, it could refer the measure to the relevant sectoral committee, either requesting observations, on which it might base a scrutiny report, or else requesting the sectoral committee to undertake detailed scrutiny and prepare its own scrutiny report. In practice, referring measures to sectoral committees tended to elicit very little work from them (often being made merely for “information” rather than for observations, much less detailed scrutiny). Following the Joint Committee on European Scrutiny hearing, a scrutiny report would be agreed. In theory, it might contain recommendations to the relevant Minister concerning Ireland’s position in Council negotiations. Under the 2002 Act, the Minister would be obliged to have regard to these. A report could also be referred to the plenary for a debate.202 In the sample year of 2010, 441 documents were considered by the Joint Scrutiny Committee comprising 382 legislative proposals and 59 other documents.203 This corresponded exactly to the number of documents and legislative proposals concerning which information notes were received from Government departments.

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By far the largest number of notes was provided by the Department of Enterprise, Trade and Innovation (with 122), followed by the Department of Finance, the Department of Foreign Affairs and the Department of Agriculture, Fisheries and Food (each of which provided about half that number)204 and the Department of Justice and Law Reform (which provided somewhat over a third).205 How efficient individual Government departments were in complying with their duty under s. 2(1) of the 2002 Act is unclear, however: there never seems to have been any mechanism during the 30th Dáil (or since) within the Committee or the Oireachtas generally for checking whether Government departments were providing information notes on all EU legislative proposals within their remit. Somewhat remarkably, three departments: the Department of Defence, the Department of Social Protection and the Department of Community, Equality and Gaeltacht Affairs appear to have provided no information notes at all in 2010. We may compare the sample year of 2015, in the 31st Dáil, at which time the Joint Committee on European Scrutiny had been abolished and the scrutiny function redistributed among sectoral committees. In 2015, 319 information notes were submitted by Government Departments/​Offices, as set out in Table 5.7 below.206 Reflecting the increased role of the EU in budgetary matters after the 2008–​2013 financial crises (and the striking rise in justice and home affairs cooperation), by now the largest number of information notes was provided by the Department of Finance (with seventy-​six, almost a quarter of the total), followed at some distance by the Department of Foreign Affairs and Trade (with forty-​nine), the Department of Justice and Equality (with forty-​six) and the Department of Jobs, Enterprise and Innovation (with forty-​three). The Department of Agriculture, Food and the Marine provided a not-​inconsiderable thirty-​five. As in 2010, the Department of Defence submitted no information notes, and the Departments of (a) Arts, Heritage and the Gaeltacht, (b) Public Expenditure and Reform, and (c) Social Protection only one each. Some of this seems due to the relatively small role that EU law plays in these fields (and the fact that the adoption of legislative acts is legally excluded in the Common Foreign and Security Policy.)207 It nonetheless seems extraordinary that over an entire year these Departments took the view that either one proposal or none merited the legislature’s attention. The explanation probably lies in variations in how Government departments interpret or approach their duties under s.  2(1) of the 2002 Act. The longevity of this phenomenon probably indicates that some coordination mechanism is overdue. S. 2(2) of the European Union (Scrutiny) Act 2002 provides that the Minister shall have regard to any recommendations made to him or her from time to time by either or both Houses of the Oireachtas or by a committee of either or both such Houses in relation to a proposed measure.

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Table 5.7.  Information notes submitted by Government departments/offices in 2015a Department/​Office

Number of Information Notes

Agriculture, Food and the Marine Arts, Heritage and the Gaeltacht Communications, Energy and Natural Resources Defence Education and Skills Environment, Community and Local Government Finance including Revenue Commissioners Foreign Affairs and Trade Health Jobs, Enterprise and Innovation Justice and Equality Public Expenditure and Reform Social Protection Taoiseach/​Central Statistics Office Transport, Tourism and Sport Total

35 1 6 0 19 14 76 49 4 43 46 1 1 2 22 319

  Source: Joint Committee on European Union Affairs, op. cit., n. 64 at p. 6 thereof.

a

This obligation stops short both of (a) a duty to comply with a scrutiny reserve (imposed on a minister in equivalent circumstances in other EU member states including the UK) or (b) a duty to comply with a parliamentary mandate (required in e.g., Denmark, Finland and Austria), a topic returned to in Chapter 6. The proportion of legislative proposals concerning which a recommendation is made tends in any case to be small. Using 2010 as our sample year in the 30th Dáil, out of 382 legislative proposals considered, the Joint Committee deemed a mere 21 (approximately 5½%) sufficiently important to Ireland to require further scrutiny. Eleven were then considered by the Joint Committee itself,208 although it produced individual reports concerning only four.209 Ten were sent to sectoral committees. However, the then chairperson of the Scrutiny Committee in 2010 observed that if we send a report from the Joint Committee on European Scrutiny to sectoral committee for a report back, one invariably finds it is rubberstamped… I give the example of a report by the Joint Committee on European Scrutiny about a directive on fisheries. This will be sent to the committee with responsibility for fisheries but will be sent back without any major due diligence on the document. That is the current difficulty.210

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The scrutiny role of sectoral committees in the 30th and 31st Dáil periods is returned to below. Reports by the Scrutiny Committee

During the 30th Dáil period, the Joint Committee on European Scrutiny also published several reports. Particularly valuable were a 2009 joint report with the Joint Committee on European Affairs,211 and a 2010 report written by a joint sub-​committee of both Oireachtas committees.212 However, given the large volume of EU proposals, the number of scrutiny reports produced was small, even compared with the small number of proposals deemed to warrant further scrutiny. The overall figure of reports produced was boosted artificially by including so-​called “meeting reports” in the total, which contained little analysis, but rather merely listed documents considered by the Scrutiny Committee (and the decision taken in relation thereto). (See Table 5.8 below.) Scrutiny Committee meetings

Witnesses played a limited role in the Joint Scrutiny Committee’s activities. Under its orders of reference, the Scrutiny Committee could request the Secretary Table 5.8.  Reports of all kinds produced by the Scrutiny Committee in 2009–​10a Year

Number of scrutiny reports on individual proposals by the Scrutiny Committee

2010 2009

4 7

Number of Other “special reports” reports by the Scrutiny Committeeb 2 2

1d 3e

Sub-​Committee Number of reports “meeting reports”c 1 0

20 13f

No records appear to exist of any reports of any kind in January 2011, which was the last month of the Joint Committee’s existence in the 30th Dáil. b I.e., composite reports of Departmental reports, providing summary of most important developments. c These enumerated documents considered at meetings of the Scrutiny Committee. d This was the Seventh Annual Report on the Operation of the European Union (Scrutiny) Act 2002 of 13 May 2010. e This figure refers to the Annual Report 2007–​08 (which was published on 6 August 2009), the Sixth Annual Report on the Operation of the European Union (Scrutiny) Act 2002 of 2 October 2009 and the Joint Committee on European Affairs and Joint Committee on European Scrutiny’s Joint Report on Implementation of the Lisbon Treaty: Interim arrangements on the enhanced role of the Houses of the Oireachtas (8 December 2009). It excludes three “reports” included in the Committee’s Seventh Annual Report on the Operation of the European Scrutiny Act 2002 viz., the Work Programme 2009, the November 2009 Report of the Delegation of the Joint Committee on European Scrutiny to COSAC XLII and an unidentified document of March 2009 simply referred to as “Meeting with Northern Ireland Assembly –​Committee for the Office of the First Minister and Deputy First Minister” on the grounds that none of these documents appear to be Scrutiny Committee reports properly so called, and were certainly not counted as such in 2010. f Note that the Scrutiny Committee only began publishing a separate report for each meeting in June 2009. a

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General of a Government Department (or a nominated representative) to attend to discuss the Department’s most recent six-​monthly report.213 A Secretary General appeared only once in 2011,214 however, once in 2010215 (when there was only one other meeting with lower-​ranked officials) and twice in 2009216 (when there were only two other meetings with lower-​ranked officials):  strikingly few occasions, given that there were fifteen Government Departments. The Scrutiny Committee could also request the appearance of a Government minister or minister of state.217 In practice, however, such appearances were rarities, the last ever (involving a minister of state) occurring in February 2009.218 On infrequent occasions (eight times in 2009, and eight times in 2010), the Committee heard from organisations, groups and individuals. Industry or sectoral groups were the most heavily represented in 2009–​2010 (making eight appearances),219 followed by regulatory authorities (with five appearances)220 and bodies linked in some manner to European activities (with three appearances).221 The Committee met on twenty-​two occasions in 2010 and on twenty-​four in 2009.222 Its work, however worthy, was dull, and perceived as devoid of any political reward for participating parliamentarians. Perhaps as a result, attendance rates were low: in 2010, there was an average attendance rate of 55%, leaving the Joint Scrutiny Committee in nineteenth place out of twenty-​ one committees.223 The meetings themselves were normally brief and debates perfunctory. The involvement of sectoral committees in scrutiny of draft legislation

Draft measures could be referred either individually or collectively to sectoral committees by the Joint Committee on European Scrutiny. In considering the measures, the sectoral joint committee could hear from or exchange views with bodies, organisations and individuals. An example of this was the May 2008 reference to the Joint Committee on Climate Change and Energy Security for detailed scrutiny of three proposals concerning the implementation of the EU Climate-​Energy legislative package. In considering these, that Joint Committee heard submissions from and exchanged views with the Department of the Environment, Heritage and Local Government, the Department of Communications, Energy and Natural Resources, IBEC, the Commission for Energy Regulation, Eirgrid, the ESB, environmental non-​ governmental organisations and the Irish Wind Energy Association. The Joint Committee then prepared a report on the basis of these discussions and consultations.224

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Some sectoral committees were likelier than others to see questions referred to them by the Scrutiny Committee. The remit of the Joint Committee on Communications, Marine and Natural Resources always made it likely it would be asked to provide further scrutiny regarding EU proposals.225 Even Oireachtas Committees whose main specialism was not at the core of EU activities could be involved, though. Hence in the 29th Dáil, a Commission proposal for a decision of the European Parliament on a single framework for the transparency of qualifications and competences was referred to the Joint Oireachtas Committee on Education and Science.The ensuing April 2004 report of that Joint Committee226 was just over three pages long but did make some recommendations of interest concerning the proposed measure. 2010 may be used as a sample year for the 30th Dáil period. In 2010, the Joint Committee on European Scrutiny forwarded seventy-​seven EU legislative proposals to sectoral committees (some being sent to more than one committee), approximately one fifth of the 382 legislative proposals considered by the Scrutiny Committee.227 However, of the proposals forwarded, the vast bulk were sent for information purposes. Only ten were sent to sectoral committees for further scrutiny, i.e., less than 3% of the total number of proposals considered by the Scrutiny Committee.228 These ten proposals went to only four (of then eighteen) sectoral Oireachtas committees: (i) the Joint Committee on Justice, Defence and Women’s Rights (which received six); (ii) the Joint Committee on Agriculture, Fisheries and Food (which received two); (iii) the Joint Committee on Communications, Energy and Natural Resources (which received one); and (iv) the Joint Committee on Finance and the Public Service (which also received one). (See Table 5.9 below.) Of these committees:  (i) the Joint Committee on Justice, Defence and Women’s Rights produced no report at all on European issues in 2010 and in particular nothing on the six proposals referred to it for scrutiny;229 (ii) the Joint Committee on Agriculture, Fisheries and Food produced one valuable report on a European issue and co-​produced another,230 but nothing on either of the two legislative proposals referred to it by the Joint Scrutiny Committee; (iii) the Joint Committee on Communications, Energy and Natural Resources duly produced a report on the one legislative proposal referred to it,231 and (iv) the Joint Committee on Finance and the Public Service produced no report on any European issue at all in 2010. In sum, therefore, only one proposal referred to a sectoral committee ever gave rise to a report of any kind. There is no evidence concerning the others that they were actively scrutinised at all. The involvement of sectoral committees

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Table 5.9.  Number of EU legislative proposals referred to Sectoral Oireachtas Joint Committees for detailed scrutiny by Joint Oireachtas Committee on European scrutiny in 2010a Sectoral Oireachtas Joint Committee

Joint Committee on Justice, Defence and Women’s Rights Joint Committee on Agriculture, Fisheries and Food Joint Committee on Communications, Energy and Natural Resources Joint Committee on Finance and the Public Service Joint Committee on Climate Change and Energy Security Joint Committee on the Constitution Joint Committee on the Constitutional Amendment on Children Joint Committee on Economic Regulatory Affairs Joint Committee on Education and Skills Joint Committee on Enterprise, Trade and Innovation Joint Committee on the Environment, Heritage and Local Government Joint Committee on European Affairs Joint Committee on Foreign Affairs Joint Committee on Health and Children Joint Committee on the Implementation of the Good Friday Agreement Joint Committee on Social Protection Joint Committee on Tourism, Culture, Sport, Community, Equality and Gaeltacht Affairs Joint Committee on Transport Total

Number of EU legislative proposals referred to sectoral Oireachtas joint committee by Joint Scrutiny Committee for detailed scrutiny 6 2 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0

0 10

 Table based on information contained in Joint Committee on European Scrutiny, op. cit., n. 210, p. 14.

a

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in the process of scrutiny of EU law measures in the 30th Dáil thus appears to have been almost completely dysfunctional  –​contributing significantly to a situation whereby a miniscule 1.3% of EU legislative proposals received by the Oireachtas in 2010 became the subject of a dedicated report by any joint Oireachtas committee.232 EU legislative proposals were referred in larger numbers by the Joint Scrutiny Committee to joint sectoral committees purely for the purposes of information (rather than more detailed scrutiny). The leading four sectoral committees in receipt of such references for information were the Joint Committee on Finance and the Public Service (which received seventeen), the Joint Committee on Justice, Defence and Women’s Rights (which also received seventeen), the Joint Committee on Enterprise, Trade and Innovation (which received eleven) and the Joint Committee on Agriculture, Fisheries and Food (which received ten).233 However, such references apparently involved no active response by the relevant sectoral committees and it is difficult to see what –​if anything –​such references for information added to the process of accountability beyond simply broadening awareness among Oireachtas members of the existence of the proposals.

The involvement of sectoral committees other than by scrutinising draft legislation In the 30th Dáil period (and beyond) European policy matters could come before sectoral committees other than by references from the Scrutiny Committee. The Joint Committee on European Affairs also occasionally referred certain non-​legislative documents. E.g., in July 2010, the Joint Committee on Climate Change and Energy Security and the Joint Committee on Agriculture, Fisheries and Food produced a joint report on the Commission Green Paper on Protecting Europe’s Forests against Climate Change, which had been referred to it for scrutiny by the Joint Oireachtas Committee on European Affairs.234 This joint report was duly published, laid before both Houses of the Oireachtas, and forwarded to relevant stakeholders.235 The report involved both a rapporteur (Fine Gael TD Andrew Doyle) and the services of a professional consultancy firm,236 and is a good example of the benefits of using a sectoral approach in examining European policy questions, although it might have been worthwhile feeding its conclusions into the political dialogue with the Commission. The November 2010 Joint Committee on Agriculture, Fisheries and Food Fourth Report: Report On Reform Of The Common Agricultural Policy Post-​2013 was fed into the political dialogue process as an own initiative report. It was duly

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replied to by the Commission (although only after a delay of approximately six months).237 Again, this Joint Committee report is an outstanding piece of work, and again involved the use of external expert consultancy help.238 Because the borderline between foreign affairs issues and European affairs issues can be a narrow one, sometimes the Joint Oireachtas Committee on Foreign Affairs could produce work which had an EU aspect to it. Past examples of this (both from the 29th Dáil period) were the January 2005 Joint Committee on Foreign Affairs document, Honouring Our Commitments To The DevelopingWorld: Report of the Conference of Chairpersons of Development Cooperation Committees Of EU Parliaments and of The Candidate States 23–​25 May, 2004, and the November 2004 Joint Committee on Foreign Affairs document, Report of the Conference of Chairpersons of Foreign Affairs Committees of EU Parliaments, of the Parliaments of the Acceding States and of the Candidate States Dublin Castle, Ireland, 28–​30 March 2004. The 2009 Annual Report and Work Programme 2010 of the Joint Committee on Justice, Equality, Defence and Women’s Rights showed that committee to be the sectoral committee239 then most preoccupied in terms of the topics it debated by EU-​related issues. In contrast, European issues featured only twice among the thirty issues considered by the Joint Committee on Enterprise, Trade and Innovation in 2010.240

Developments in the role of sectoral committees in the 31st Dáil period The scrutiny system in the 30th Dáil clearly needed change. Opportunity for change came with the election of a new Dáil and Seanad in 2011. The programme for the new government, Government for National Recovery 2011–​2016 asserted “all Oireachtas committees must share the burden of dealing with EU policies and legislative proposals”.241 It proposed that Oireachtas Committees will play the major role in scrutinising the EU in the coming years. Greater emphasis will be placed on deepening the involvement in EU matters of the Oireachtas committees that shadow the work of each Government Department. We will oblige all sectoral committees to deal with EU matters that come within their remit within a defined period of time.

The kind of internal organisation that was expected to support Oireachtas committees in this work was made clear by the intention expressed in the programme that “Committees will be supplemented by a system of subcommittees and a system of rapporteurs who have a particular interest in an area of policy

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or scrutiny and who volunteer to carry out an in-​depth book for the relevant committee”.242 As is seen in Table 5.10 below, the scrutiny system was subsequently decentralised in the 31st Dáil. The Joint Committee on European Union Scrutiny was not re-​established and the Joint Committee on European Affairs assigned only four proposals to scrutinise in the entire Dáil period. Insofar as concerns the question of which joint committees assumed the workload of the now-​defunct Scrutiny Joint Committee, Table 5.10 reveals that, consistently, the Joint Committee on Finance, Public Expenditure and Reform, the Joint Committee on Jobs, Enterprise and Innovation and the Joint Committee on Foreign Affairs and Trade found themselves scrutinising the largest number of proposals in the 31st Dáil. As regards the Joint Committee on Finance, Public Expenditure and Reform this was probably related to the effective legal revolution that the eurozone had to undergo in order to ensure its survival through the 2008–​13 crises.The high levels of scrutiny work assigned to the Joint Committee on Jobs, Enterprise and Innovation and the Joint Committee on Foreign Affairs and Trade were probably linked to the centrality of the single market to the EU, as were the relatively high scrutiny demands made of the Joint Committees on Jobs, Social Protection and Education and on Transport and Communications. Nor is it surprising to see that considerable scrutiny burdens appeared in the justice and home affairs and agriculture fields given the current high level of activity of the EU in these fields. In other words, by and large, those Oireachtas Committees engaged in high levels of scrutiny are precisely those one would expect to see engaged by the EU with its current set of priorities. To this extent, the scrutiny process seems relevant to current EU legislative developments. The number of measures being scrutinised rose from the mid-​300s at the beginning of the Dáil period to a peak of around 600 at the midway point to return to the mid-​300s at the end. Some of this may be due to the slow start which committees get in any Dáil period and the distracting nature of re-​election campaigns at the end. Some may also be due to the efforts by the Commission to reduce the number of initiatives it has been producing.243 In addition, the bedding-​down period for the new scrutiny system in the 31st Dáil period may have reduced scrutiny output in 2011.244 Overall, quantitatively, the numbers of documents and legislative proposals considered, referred, examined and reported on seem very broadly comparable to the number of documents and legislative proposals considered, referred, examined and reported on by the Joint Committee on EU Scrutiny in the 30th Dáil period (with for example, as has already been noted, 441 documents (including 382 legislative proposals) being considered by that Committee in the last full year of its existence in 2010.245

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Table 5.10.  No of EU proposals considered by each Joint Committee in the period of the 31st Dáila Name of Joint Oireachtas Committee

Number of EU proposals considered by the Committee each year

2011b 2012 Communications, Natural Resources and Agriculture Environment, Transport, Culture and the Gaeltacht Environment, Culture and the Gaeltacht Transport and Communications Finance, Public Expenditure and Reform Justice, Defence and Equality Jobs, Social Protection and Education Jobs, Enterprise and Innovation Education and Social Protection Health and Children Foreign Affairs & Trade Agriculture, Food and Marine European Union Affairs Total

2013c

2014

Total considered by each Committee in 31st Dáil period

2015

58

*

50

–​

–​

–​

108

37

42*

–​

–​

–​

79

–​

8**

42

25

11

86

–​ 64

12** 99

74 115

35 121

30 94

151 493

31 –​

54 –​

181 161

99 21

50 27

348 101

1 48 47 –​

33 400 220 4

17 107

36 54*

–​ –​

63** 25**

3 80 –​ –​

15 84 49** –​

366

537

43 –​ 136 28 8 85 71 –​ 602

6 103 53 4 498

362

2365

a Source:  author’s collation from Joint Oireachtas Committee on European Union Affairs, Ninth, Tenth, Eleventh, Twelfth and Thirteenth Annual Reports on the operation of the European Union Scrutiny Act 2002. Note that the Committees were restructured in 2012. b 1st February 2011 to 31st December 2011 only, by reason of the election in this year. c Note that the Annual Report for this year exhibits some confusion regarding the mere consideration of proposals and the taking of decisions regarding those proposals, a distinction drawn between the two in the following year’s report but the numbers of proposals that fall under each heading in relation to each committee is extremely close in any case. * Operational from Jan to 18 June 2012 only. ** Operational from 19 June 2012 onwards.

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In terms of the kinds of proposals or documents considered by the various Joint Oireachtas Committees these, in the sample year of 2015, were dominated by various categories of ‘decision’ (a category rather too loosely defined to be very useful): a full 241 decisions were considered by various Oireachtas Committees comprising 63.5% of all proposals looked at. Regulations came next: seventy-​seven of these were considered, comprising 20% of the scrutiny burden of Joint Committees. Nineteen budget proposals (5%) were also considered as were twelve Commission communications (3.5%). Other documents considered comprised a relatively smaller fraction of Joint Committees’ scrutiny work. Hence, and somewhat surprisingly, only seven directives were considered (1.8% of the document total), four recommendations (1%), eleven early warning notifications (3%), seven CFSP proposals (1.8%), a single Green paper, and a Commission report.246 The relatively limited extent of the focus on legislative measures is  not necessarily unwise in that by the time EU legislation is proposed it will probably be too late for a national parliament to exercise anything but the most marginal influence over it. Hence energy is better expended on strategy documents. Among legislative documents it was interesting to note that legally binding measures were of more concern than non-​legally binding measures (such as recommendations), and that among legally binding measures, perhaps somewhat surprisingly, regulations engaged Committees far more than did directives, even though it is only the latter which are guaranteed to require transposition into national law, insofar as inconsistent therewith. A clearer idea of what sectoral Oireachtas committees seek to focus on in terms of their scrutiny work can be gained from a perusal of the agreed list of priorities which is compiled annually, by means of each committee identifying its own priorities in the European Commission’s Work Programme for that year. This is provided in Table 5.11 below. (This priority list must be read with circumspection. It was not exhaustive. Proposals on the priority list also included measures subject to a subsidiarity check; proposals identified by the relevant Department as being of major significance; and those considered by the relevant EU policy clerk to be of interest to a Committee. There was also a list of non-​priority proposals for scrutiny.) Nevertheless, it is interesting that the 2015 Work Programme listed the priorities set out in Table 5.11 for scrutiny by sectoral Committees. One should not paint too rosy a picture. Overall, there was little evidence that many proposals were subject to detailed scrutiny by the Oireachtas. Indeed, what quantitative and qualitative evidence there is indicates that the contrary tended to be the case. Thus e.g., in 2015 (the latest year in which comprehensive figures are available), 362 EU proposals of various kinds247 were considered by various Oireachtas joint committees. Of these, only 43 (11.5%) were deemed

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Table 5.11.  Scrutiny priorities identified in the 2015 Work Programme for Sectoral Joint Oireachtas Committees Name of Joint Oireachtas Proposals for priority scrutiny Committee Joint Committee on Agriculture, Food and the Marine Joint Committee on Education and Social Protection

Joint Committee on Environment, Culture and the Gaeltacht

Review of the GMO decision-​making process Legislative Legislative Promoting integration and employability in the labour market

Both legislative and non-​legislative

Labour Mobility Package

Both legislative and non-​legislative Legislative

The Investment Plan for Europe: Legislative Follow-​up Strategic Framework for the Energy Union

Joint Committee on Finance, Public Expenditure and Reform

Nature of proposal

Communication on the Road to Paris –​ multilateral response to climate change The Investment Plan for Europe: Legislative Follow-​up

Capital Markets Union Framework for resolution of financial institutions other than banks Deepening Economic and Monetary Union Package Proposal for a Directive with a view to providing for compulsory exchange of information in respect of crossborder rulings Action Plan on efforts to combat tax evasion and tax fraud, including a Communication on a renewed approach for corporate taxation in the Single Market in the light of global developments

Both legislative and non-​legislative Non-​legislative Legislative

Both legislative and non-​legislative Legislative Both legislative and non-​legislative Legislative

Non-​legislative

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Table 5.11.  (Continued) Name of Joint Oireachtas Proposals for priority scrutiny Committee

Nature of proposal

Proposal for an inter-​institutional agreement on a mandatory Transparency Register Joint Committee on Mid-​term review of the Europe 2020 European Union Affairs strategy Deepening Economic and Monetary Union Package European Agenda on Migration

Non-​legislative

Joint Committee on Finance, Public Expenditure and Reform

Non-​legislative

Both legislative and non-​legislative Both legislative and non-​legislative Communication on European Neighbourhood Non-​legislative Policy Proposal for an inter-​institutional Non-​legislative agreement on better law-​making The Investment Plan for Europe: Legislative Legislative Follow-​up

Capital Markets Union Framework for resolution of financial institutions other than banks Deepening Economic and Monetary Union Package Proposal for a Directive with a view to providing for compulsory exchange of information in respect of crossborder rulings Action Plan on efforts to combat tax evasion and tax fraud, including a Communication on a renewed approach for corporate taxation in the Single Market in the light of global developments Proposal for an inter-​institutional agreement on a mandatory Transparency Register

Both legislative and non-​legislative Legislative Both legislative and non-​legislative Legislative

Non-​legislative

Non-​legislative

(Continued )

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Table 5.11.  (Continued) Name of Joint Oireachtas Proposals for priority scrutiny Committee

Nature of proposal

Joint Committee on Foreign Affairs and Trade

Non-​legislative

Joint Committee on Jobs, Enterprise and Innovation

European Agenda on Security

Communication on European Neighbourhood Non-​legislative Policy Communication on the post-​2015 Non-​legislative Sustainable Development Goals The Investment Plan for Europe: Legislative Legislative Follow-​ up Digital Single Market (DSM) Package Internal Market Strategy for goods and services Trade and Investment Strategy for Jobs and Growth European Agenda on Migration

Joint Committee on Justice, Defence and Equality

Proposals to complete EU accession to the ECHR European Agenda on Security European Agenda on Migration

Joint Committee on Transport and Communications

Digital Single Market (DSM) Package

Strategic Framework for the Energy Union Aviation Package

Both legislative and non-​legislative Both legislative and non-​legislative Non-​legislative Both legislative and non-​legislative Legislative

Non-​legislative Both legislative and non-​legislative Both legislative and non-​legislative Both legislative and non-​legislative Both legislative and non-​legislative

by any committee to require any further scrutiny, an increase from the equivalent figure of 8% in 2011, but still a very small proportion, especially given that government departments in 2015 had deemed it appropriate to send information notes on 319 legislative proposals. Apart from such quantitative evidence,

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a perusal of records of Joint Committee debates reveals that the length of time spent considering EU scrutiny issues by sectoral committees in public session in the 31st Dáil period was generally minimal. This is presumably because they are of little political value or interest, and sectoral committees already have a large workload concerning domestic matters, which tend to be given priority. Scrutiny duties were also competing for committee members’ attention with more electorally valuable constituency work. In consequence, they were often dealt with in a few minutes at the beginning of committee meetings largely dedicated to other purposes, normally producing a decision that a predetermined list of measures warranted no further scrutiny. Occasionally, a determination to seek further details was made or sometimes an observation that the relevant decision had already been taken at EU level. Ex ante briefings of joint Oireachtas committees other than the Joint Committee for European (Union) Affairs prior to Council meetings

The approach to briefing Oireachtas committees prior to Council meetings supposedly changed between the 30th and 31st Dáil periods. During the 30th Dáil period (2007–​11), the Council met 270 times,248 in ten different formations, often discussing matters of considerable importance. Thirty-​one ministerial briefings were given to the Joint Committee on European Affairs in this time. Even assuming each to have covered both a General Affairs and a Foreign Affairs Council, the Oireachtas was briefed on sixty-​two occasions only (i.e., in respect of 23% of Council meetings). Although very occasionally other ministers in the 30th Dáil period gave briefings to other Committees249 this was exceptional. A survey by the writer of the meetings of every other Dáil, Seanad or Oireachtas committee which sat in the sample year of 2010 (during which seventy-​three Council meetings were held)250 could find no evidence of a ministerial briefing having been given concerning a Council meeting, other than the eight given to the Joint Committee on European Affairs. Once again, making the generous assumption that each of these briefings covered both a General Affairs and a Foreign Affairs Council (and so to have covered sixteen Council meetings), this means that in 2010 ministerial briefings were given in respect of a mere 22% of all Council meetings. Although European issues may sometimes have been discussed in other Committees, in relation to three quarters of the Council meetings in that year (and indeed during the entire 30th Dáil period), no systematic accountability either ex post facto or ex ante was provided to Oireachtas committees. Of course, a single Oireachtas Joint Committee, such as the European Affairs Committee could never have realistically imposed accountability in respect of all Council meetings. Otherwise, its members would have had time to do little else. The better approach (and probably the only feasible effective approach) was to devise a system involving sharing out the accountability workload by

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obliging every minister participating in Council meetings to have meetings with his or her sectoral committee. Research has shown that Europe-​wide, the better-​ functioning control systems have involved the spreading of work across parliamentary committees, rather than its exclusive concentration in one or two.251 Precisely this approach was envisaged in Government for National Recovery 2011–​2016, which under the heading “Oireachtas Accountability” undertook that “all Ministers will be obliged to appear before their respective Committees or before the Committee on European Affairs prior to travelling to Brussels for meetings of the Council where decisions are made”.252 As has already been noted, however, this objective was not attained during the 31st Dáil period. 2015 may be taken as a sample year to illustrate the point. The Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002253 accurately records that only twelve pre-​Council meetings were held by (five) Joint Committees in 2015.254 (The breakdown of these meetings is recorded in Table 5.12 below.) Since there were seventy-​eight Council meetings during this period,255 this means only 15% of Council meetings were preceded by a ministerial briefing to an Oireachtas committee.256 A very low level of ex ante accountability was thus provided in respect of the activities of Irish government ministers in the Council: the vast majority of Council meetings during the 31st Dáil were not preceded by any Oireachtas committee briefing. Joint Oireachtas committees and participation in the process of political dialogue with the European Commission

As was seen in Chapter 1, another important Joint Oireachtas Committee activity is sending opinions to the European Commission in the framework of the political dialogue (a process inaugurated as the so-​called “Barroso initiative” in 2006).257 This process has opened up the possibility of national parliaments exercising influence at an early stage in the formulation of EU policy, and effectively involves national parliaments playing the unaccustomed new role of advocates or lobbyists at EU level. The Oireachtas has participated in the political dialogue process each year since 2007 (even if its involvement has at times been minimal).258 Information published by the European Commission in this regard is set out in Tables 5.13 and 5.14 below. In the 31st Dáil period, thirty-​three opinions (which were not also reasoned opinions alleging a subsidiarity infraction) were contributed from 2011 to 2013 –​an average of 6.6 each year. How did this compare with other EU states? By way of comparison, in 2015, participation in the political dialogue by the thirty-​nine national parliaments or chambers259 could be divided into four categories: non-​participants (comprising seven parliaments or chambers with no engagement with the political dialogue (ranging from the Austrian Nationalrat to the Polish Sejm to both chambers of the Slovenian parliament); minor-​scale participants comprising the twenty-​five

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Table 5.12.  Record of pre-​council briefings by Ministers of Joint Oireachtas Committees in 2015 in respect of the seventy-​eight Council meetings held that year Committee name Joint Committee on Foreign Affairs & Trade Joint Committee on Finance, Public Expenditure & Reform Joint Committee on European Union Affairs Joint Committee on Transport & Communication Joint Committee on Agriculture, Food & the Marine Joint Committee on Justice, Defence and Equality Joint Committee on Health & Children Joint Committee on Environment, Culture & the Gaeltacht Joint Committee on Education & Social Protection Joint Committee on Jobs, Enterprise and Innovationb Total

Number of ministerial pre-​Council briefings 3 3 3 2a 1 0 0 0 0 0 12

a In a further two meetings, the outcomes of Council meetings which had already taken place were set out by a Minister, although of course, the lack of an ex ante briefing this deprived the Committee of any opportunity to influence that outcome. b Other Joint Committees which were not briefed by Ministers prior to Council meetings were the Joint Committee on the Implementation of the Good Friday Agreement, the Joint Committee on Public Oversight and Petitions and the Joint Committee of Enquiry into the Banking Crisis, but these have not been included in this table as there is no counterpart Council meeting at EU level which an Irish Government Minister would have attended, and thus the issue of a pre-​Council briefing does not arise.

parliaments or chambers which submitted less than fifteen opinions in the entire year (ranging from the Maltese Kamra tad-​Deputati with just one opinion, to the Romanian Senat with fourteen). Ireland slotted in towards the top of this rather under-​engaged group with nine opinions in 2015. A more high-​powered group of serious participants (comprising the German Bundesrat, the UK House of Lords, the French Assemblée nationale, the Italian Senato and the Czech Sénat) submitted between twenty and twenty-​five opinions. The leading participants, the Portuguese Assembleia and the Romanian Camera Deputatilor were in a league of their own submitting, respectively, fifty-​five and forty-​seven opinions.260

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Table 5.13.  Commission information on Oireachtas participation in the process of political dialogue in 2010–​15a Year

Total number of opinions received by Commission (under political dialogue) from Oireachtas

Reasoned opinions on subsidiarity received by Commission from Oireachtas

2015 2014 2013 2012 2011 2010

9b 8 12c 7 1d 3

0 0 3 0 1 0

Total 2010–​15

40

4

a Source:  European Commission’s annual reports on relations between the European Commission and national parliaments. At the time of writing, these were available online at http://​ec.europa.eu/​info/​ annual-​reports-​relations-​national-​parliaments_​en b It appears that either a report on the Capital Markets Union submitted by the Joint Committee on Finance, Public Expenditure and Reform may also have been deemed a political contribution by the Commission or else the agreement of the Joint Committee on Environment Culture and Gaeltacht to support a House of Lords proposal on food waste policy which was at the time being submitted to the European Commission. c The Commission included subsidiarity reasoned opinions as political contributions in this figure.The number of contributions which were not reasoned opinions in this year was 9, a figure which appears to have been relied on by including as a contribution a letter sent to the European Parliament LIBE Committee concerning the Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) (COM(2013)173). d The Commission included the subsidiarity reasoned opinion issued by the Oireachtas in this year as a political contribution in this figure. The number of contributions which were not reasoned opinions in this year was zero.

Table 5.14.  Commission information on Oireachtas participation in the process of political dialogue in 2006–​09 Year 2009 2008 2007 2006 Total 2006–​09

Total number of opinions acknowledged by the European Commission to have been received by the Commission from the Oireachtasa 6 7 1 0 14

 No distinction was drawn in statistics for 2006 to 2009 as to whether these were reasoned opinions on subsidiarity or not.

a

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Ireland’s low participation rate confirms a trend recognisable from the 30th Dáil. Between the commencement of political dialogue in 2006 and 2010, the Oireachtas sent seventeen opinions to the European Commission. Several of these (perhaps as many as seven) were not contributions to the political dialogue at all, properly so called, however. Some were merely opinions on whether subsidiarity had been breached by particular draft pieces of EU legislation selected in a series of exercises organised by COSAC.261 Even were one to count all seventeen opinions as political dialogue contributions, this corresponds to an average of just over five opinions a year, although (as seen in Table 5.15), the number of opinions sent each year varied considerably. 2008 saw a record seven contributions made. 2006 saw none at all. Contributing to the political dialogue is not widespread among joint committees, as can be seen from Table 5.15. In 2014–​15, contributions were confined to just three committees: the Joint Committee on Agriculture, Food and the Marine,262 the Joint Committee on EU Affairs263 and the Joint Committee on Jobs, Enterprise and Innovation.264 Somewhat paradoxically, in a Dáil period in which EU matters were supposedly mainstreamed among Oireachtas committees, political dialogue activity remained remarkably centralised:  the Joint Oireachtas Committee on EU Affairs made four contributions in 2014, and two in 2015 (co-​authoring a further one). European issues in a sample committee: the Joint Oireachtas Committee on Justice, Defence and Equality265

In the 30th Dáil, the Joint Committee on Justice, Equality, Defence and Women’s Rights appeared to be the sectoral Oireachtas committee266 most dominated by EU-​related issues. Hence, the 2009 Annual Report andWork Programme 2010 of the Joint Committee revealed (see Table 5.16) that of the nineteen topics considered at the Committee’s ten 2010 meetings, fourteen involved the consideration of some matter relating to justice and home affairs cooperation at EU level (eleven involving opting-​in resolutions under what is now Article 29.4.7° of the Constitution). Matters changed considerably in the 31st Dáil, however, and in an unexpected way. Taking 2015 as a sample year, this seems to have been a particularly lean time for Ireland opting into measures in the Justice and Home Affairs field. In 2015, only one motion was considered concerning opting in to some facet of EU justice and home affairs cooperation.267 Too much should not perhaps be read into that, as the number of proposals made to which it is wished to opt into may vary from year to year. What was also striking in 2015, however, was the very strong focus of committees on non-​EU matters compared to 2009. (See Table  5.17.) Insofar as attention was paid to

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Table 5.15.  Political contributions submitted by individual Joint Oireachtas Committees under the political dialogue process in 2011–​15 (in the period of the 31st Dáil)a Joint Committee

Years in which contributions submitted and number of contributions

Agriculture, Food and the Marine 2015 (4 + 1 jointlyb), 2014 (2), 2013(1c), 2012 (1) European Union Affairs 2015 (2+1 jointlyd), 2014 (4), 2013(1) Jobs, Enterprise and Innovation 2015 (1 jointly), 2014 (2), 2013(2) Education and Social 2013 (2) Protection Environment, Culture and the 2013 (1), Gaeltacht Transport and Communications 2013 (1) Communications, 2012 (1) Natural Resources and Agriculture Jobs, Social Protection and 2012(1) Education Standing Order 103 Committeee 2011(0f)

Total number of contributions by Committee in 31st Dáil Period 8 +1 jointly 7 +1 jointly 4 +1 jointly 2 1 1 1

1 0

a Source: author’s collation from information in annual reports on the operation of the European Union (Scrutiny) Act 2002. b With Joint Committee on European Union Affairs and with Joint Committee on Jobs, Enterprise and Innovation. c The Joint Committee on Agriculture, Food and the Marine proposed subsidiarity reasoned opinions be sent by the Dáil and the Seanad in relation to one EU proposal in this year –​the proposal for a Directive establishing a framework for maritime spacial planning and integrated coastal management (COM(2013) 133). The Joint Committee on Justice, Defence and Equality also submitted a reasoned opinion on the proposed Council regulation on the establishment of a European Public Prosecutor’s Office (COM (2013) 534). The Joint Committee on Transport and Communications too submitted a reasoned opinion –​on the proposed regulation laying down measures concerning the European market for electronic communications and to a achieve a connected continent (COM (2013) 627). d With Joint Committee on Agriculture, Food and the Marine and with Joint Committee on Jobs, Enterprise and Innovation. e Set up to deal with subsidiarity violations pending the election of the new Seanad in that year. f The Standing Order 103 Committee proposed a subsidiarity reasoned opinion be sent by the Dáil in relation to one EU proposal in this year.

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Table 5.16.  Topics considered at the ten meetings held by the Joint Committee on Justice, Equality, Defence and Women’s Rights in 2009a Category of topic

Number of times this category of topic considered

Motions on Opting in to Some Facet of European Union Justice and Home Affairs Cooperationb Other European Union-​Related Topicsc Non-​European Union-​Related Topicsd

11

Total

19

3 5

a Source: information provided in paragraph 7(1) of the 2009 Annual Report andWork Programme 2010 of the Joint Committee on Justice, Equality, Defence and Women’s Rights. b These were, respectively (1) a motion on the adoption and application of the proposal from the European Commission for the recasting of the Eurodac Regulation; (2) a motion on the adoption and application of the proposal from the European Commission for the recasting of the Dublin Regulation; (3) a motion on the adoption by Ireland of an EU Council Decision on the establishment of the European Criminal Records Information System (ECRIS); (4) a motion on proposals from the European Commission for Regulations establishing procedures for the negotiation and conclusion, between member states and third countries, of bilateral agreements within the civil justice area; (5) a motion on Adoption of an EU Council Decision on the Agreement between the European Union and Iceland and Norway on the stepping up of cross border co-​operation, particularly in the areas of combating terrorism and cross border crime; (6) a motion regarding a proposed Council framework decision on the application, between EU Member States, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention; (7) a motion on a proposal for a Regulation of the European Parliament and of the Council establishing a European Asylum Support Office; (8) a motion on an agreement between the EU and the USA on the processing and transfer of Financial Messaging Data from the EU to the USA for the purposes of the Terrorist Finance Tracking Programme (the “SWIFT” Agreement); (9) a motion on a Council framework decision concerning accreditation of forensic service Providers carrying out laboratory activities; (10) a motion on a Council Decision on the signing, on behalf of the European Union, of an agreement between the European Union and Japan on mutual legal assistance in criminal matters; and (11) a motion on a proposal for a Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/​629/​JHA. See generally para. 7(1) of the Joint Committee’s work. c These were, respectively (1) briefings on Justice and Home Affairs matters (twice); (2) discussion with Centre for Irish & European Security on a then forthcoming report by European Security Policy & Innovation Forum. d These were, respectively (1) a discussion of a report of the Garda Síochána Inspectorate; (2) a discussion with the Garda Commissioner; (3) a discussion on the Department of Defence and Defence Forces Strategy Statement 2008–​2010 with the Minister for Defence; (4)  a discussion of the Committee Work Programme; and (5) a consideration of a sub-​committee report on women’s participation in politics.

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Table 5.17.  Topics considered at the twenty meetings held by the Joint Committee on Justice, Defence and Equality in 2015a Category of topic Motions on Opting in to Some Facet of European Union Justice and Home Affairs Cooperationb Other European Union-​Related Topicsc Non-​European Union-​Related Topicsd

Number of times this category of topic considered 1

7 26

a Source:  information collated by author from Committee website, available at the time of writing at http://​oireachtasdebates.oireachtas.ie/​debates%20authoring/​debateswebpack.nsf/​committeebasebyyear/​2015?opendocument. No annual report appears to have been produced by the Committee itself in respect of this year. b This was a proposal for a Regulation of the European Parliament and of the Council repealing certain acts in the field of police cooperation and judicial cooperation in criminal matters. c Most of these however were general topics which happened to have a strong European Union aspect rather than discussions of specifically EU-​related topics. They were respectively (1) the effects of gangland crime; (2)  undocumented migrants living in Ireland (a topic which was discussed twice); (3)  global refugee resettlement needs and related matters; (4) the migrant crisis; (5) the Employment Equality (Abolition of Mandatory Retirement Age) Bill 2014; and (6) the general scheme of the Criminal Justice (Victims of Crime) Bill, designed to give effect to certain provisions of Directive 2012/​29/​EU. d These are far too numerous to list here but included e.g., discussions on rural crime, the Government White Paper on defence, charities regulation and the administration of the Courts.

any EU matter in 2015, it was invariably because a topic for discussion had an EU aspect, rather than because of a decision to focus on EU affairs. Given the emphasis placed in the programme for government on the mainstreaming of European issues, this may be considered surprising. The Dáil Select Committee on Justice, Defence and Equality met thirteen times. It may be that its legislative and other work (which included some discussions of EU-​ related matters)268 blunted the appetite of its members for further such discussions when sitting in the Joint Oireachtas Committee. Other activities of the Joint Oireachtas Committee on Justice, Defence and Equality also indicated a low level of Europeanisation. As already seen, 2015 saw no ministerial briefings of the Committee prior to Council meetings. Nor did the Joint Committee engage in the political dialogue with the Commission (at any time in the 31st Dáil period). On the other hand, the number of EU proposals scrutinised by the Joint Committee in 2015 (i.e., 54) was the second highest of any joint committee and its total of 181 the fifth highest of thirteen joint committees in the 31st Dáil period. That much said, only seven scrutinised

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proposals were deemed to require any further scrutiny, meaning that very little Committee time was spent in exercising the scrutiny function.

Establishing accountability on the part of Government in European matters: the role of plenary sessions of the Dáil Apart from the efforts of Oireachtas committees to establish Government accountability, there are also the endeavours of the Houses in plenary session. In 2015, the Dáil sat on 118 days (up from 100 in 2010 and corresponding to 874 sitting hours), and the Seanad on 106 days (up from 97 in 2010 and corresponding to 666 sitting hours).269 In the Dáil,270 accountability is sought to be imposed via (i) parliamentary questions; and (ii) debates. A few observations may be made about how the Dáil works in plenary session before dealing with these mechanisms. The procedure governing such mechanisms271 is provided for by Standing Orders (which have been described as the procedural rulebook members are required to follow).272 Originating in the 1920s, Standing Orders have been subject to considerable modifications over time. The amount of time dedicated to each of these accountability mechanisms is not constant. The Dáil timetable varies considerably from day to day. Although some events (private members’ business and matters on the adjournment) are held at the same time each day, others, such as parliamentary questions to the Taoiseach, are not.273 The Government is very much in control of the agenda. The Government chief whip schedules business (even if Opposition whips do meet on a weekly basis to discuss the agenda with their Government counterpart).274 However, as Caffrey points out, the Opposition has a range of formal opportunities to scrutinise government activity, including questions to ministers, debates on legislation, and debates on topical issues, both local and national. It also uses Dáil procedures to its own advantage, creating novel ways to hold the government accountable, such as raising questions on the “order of business”…275

Parliamentary questions Parliamentary questions have been described as “in theory one of the few worthwhile instruments with which any TD can trouble the Government”.276 They are a much-​used mechanism in Irish political life. In 2015, the Dáil had the third highest number of parliamentary questions tabled across twenty-​eight parliaments reviewed, with 52,910 questions, and by far the highest average number of questions per member (at 319 per TD).277

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In practice, perhaps one question in fifty will be answered in the Dáil. A similar number will be disallowed. Around three quarters will receive written replies.The rest, it appears, will simply be withdrawn. Hence, for example, in 2014 (the last year in respect of which such statistics had been published at the time of writing), 54,691 questions were asked in the Dáil, 40,369 of these (74%) obtained written replies, 1,535 (3%) received an oral reply and 1,354 (2%) were disallowed, with the remaining 21% apparently withdrawn. Parties deliberately put down large numbers of similar questions to increase the likelihood of questions for oral answer (which appear on the order paper in a sequence decided by lottery) succeeding in arriving at a place on the order paper which will see them answered.278 Extensive use of questions is also widespread among Irish MEPs in the European Parliament, where Irish MEPs asked 525 parliamentary questions in 2015.279 Asking questions can be an information-​seeking exercise. But it can also have a quite different objective. Gallagher observes of the Dáil that question time is highly politicised. Opposition TDs put down questions for oral answer not in an ingenuous search for information but, in most cases, as part of the ongoing war of attrition against the government, which they hope to be able to embarrass… Ministers treat question time in the same spirit, aiming to give away as little as possible. The culture is one of concealment, not of openness. The etiquette of parliamentary questions… requires not that answers be helpful or informative but only that they not be untruthful.280

Parliamentary questions come in six different varieties.281 All can be used in order to enable European policy-​related issues to be aired. They are: Questions to the Taoiseach (generally put by the leaders of Opposition parties)282

These can be a useful way for Opposition leaders to find out information about developments at EU level.The following exchange, has been reproduced at length as it shows the potential usefulness of such questions in finding out a broad range of European-​related issues. It also shows that questions to the Taoiseach can be used as a means of obtaining extra information about the results of European Council meetings to that provided in statements. The exchange reproduced below also sheds light on informal meetings between heads of government at the margins of the European Council, a topic unlikely to feature in statements by the Taoiseach on European Council outcomes. The question also shows questions can sometimes elicit detailed information on fundamentally important constitutional and economic questions.283 The opportunity given to the Opposition politician here to obtain extra information by putting further questions in the course of the debate is also of interest.

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Textbox 5.2.  Examples of questions to the Taoiseach concerning EU-​related issues 1. Deputy Eamon Gilmore asked the Taoiseach if he will make a statement on his participation in the EU Summit in Brussels on 28 and 29 October 2010. 2. Deputy Eamon Gilmore asked the Taoiseach if he will make a statement on any discussions he had with other EU leaders on the margins of the EU Summit in Brussels on 28 and 29 October 2010. 3. Deputy Enda Kenny asked the Taoiseach if he will report on his attendance at the October meeting of the European Council in Brussels; and if he will make a statement on the matter. 4. Deputy Enda Kenny asked the Taoiseach the bilateral meetings he held on the margins of the October European Council meetings; and if he will make a statement on the matter. 5. Deputy Enda Kenny asked the Taoiseach if he will report on his recent contacts with the President of the European Commission; and if he will make a statement on the matter. 6. Deputy Caoimhghín Ó Caoláin asked the Taoiseach if he will report on his participation in the European Council meeting on 28 October. The Taoiseach: I propose to take Questions Nos. 1 to 6, inclusive, together. I attended the October meeting of the European Council in Brussels on 28 and 29 October. As I will be making a statement to the House later today, I will confine myself to giving a summary account of the proceedings now. The Council endorsed the outcome of the task force on economic governance, chaired by President Van Rompuy, and agreed that the legislative measures needed to implement its recommendations be fast-​tracked, so that agreement is reached between the Council and European Parliament by summer 2011. The Council also discussed the question of a permanent crisis mechanism. There was agreement that this was needed to safeguard the financial stability of the euro, and that we need to get the work under way so that the mechanism can be in place by mid-​2013, when the current arrangement expires. The Council asked President Van Rompuy to undertake consultations with member states on limited treaty change to this effect. The Council will return to the matter at its next meeting in December, when it will agree on

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an outline for the mechanism, and on any necessary limited amendment to the treaty. While it was not on our agenda, a number of member states indicated a wish to discuss the Union’s budget following a presentation by the President of the European Parliament, Jerzy Buzek. We agreed to return to the matter at our next meeting in December. In addition, the Council discussed a number of other issues including preparations for the forthcoming G20 Summit in Seoul; for the Cancún conference on climate change; and for summits with third countries, including the United States, Russia, Ukraine, India and Africa. Prior to the European Council meeting, I attended a meeting of the European Liberal Democrat Party, the ELDR, at which I met a number of my European Council colleagues, including the new Prime Minister of the Netherlands, Mark Rutte. While I had no formal meeting with the President of the European Commission, I did of course see President Barroso at the European Council meeting. Deputy Eamon Gilmore: I wish to ask the Taoiseach about the proposal to make a treaty change to accommodate the establishment of a permanent mechanism for financial stability and the stabilisation fund. I understand it is the intention that the President of the Council will report back to the December summit. Does the Taoiseach expect that the President of the Council, Mr. Van Rompuy, will make a proposal to the December summit with regard to a proposed treaty change? Is it considered that such a treaty change would require a referendum in this State? The Taoiseach will recall that at the time the Lisbon treaty was passed it was understood by all parties in the House and by the public that it was unlikely that there would be further treaty-​amending ­referenda for some time, that institutional issues had been resolved as far as the European Union was concerned for the foreseeable future. Does he anticipate that the proposed change will give rise to a referendum? Has any consideration been given to the implications of Article 48 of the Lisbon treaty which speaks in fairly explicit terms about the necessity for a convention if treaty changes are being considered? Is it intended that a convention would be convened arising from any proposal that the President of the Council would make? The Taoiseach: We agree with the need for proposals on a proposed permanent crisis mechanism. As Deputy Gilmore is aware, arrangements for a facility are currently in place that end in mid-​2013. It was felt that it

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would be generally reassuring to markets and to meet the requirements of the situation that a permanent crisis mechanism would be put on a firm legal footing. President Van Rompuy is to undertake consultations with member states on the limited treaty change required to that effect. The European Council will come back to the matter in December with a view to taking a final decision. There is a simplified amendment procedure in the treaty. It is not the case that an Intergovernmental Conference must be held in all situations. One must await the details of the proposals but it is envisaged that this is a matter that would be decided upon in December. It is an urgent matter given the nature of the financial crisis worldwide and the need to deal with it. The Council has decided that the President of the Council will undertake consultations with member states on limited treaty change required to that effect. On whether a referendum is required, we must examine whatever emerges from the process very carefully. It is clear that the European Council is seeking limited change. When we have a proposal we must assess carefully what steps are necessary to enable this country to ratify any change. Until there is a specific proposal, it is not very rewarding to speculate further. Every country has to ratify according to its own constitutional arrangements. There are legal thresholds that would indicate whether referenda are required and we have to await the details of the proposal. Deputy Eamon Gilmore: Does the Taoiseach believe that the issue of treaty change which is now being considered by the President of the Council is contributing in any way to the uncertainty in the markets? A possible treaty change in respect of crisis mechanisms is being c­ onsidered by the European Council while the Heads of some member states are speculating and making suggestions on how those ­mechanisms might work in practice. This has consequences for the markets. Other matters have been under consideration by the Council for some time. For example, the regulation of international rating agencies was considered by the Council as far back as June 2008 when the EU was planning to regulate them. As a country, we have been on the receiving end of the opinions expressed by these agencies. Has any progress been made in terms of their regulation or regarding the idea of the establishment by the EU of a European rating agency?

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In December, there was a commitment to establish a fundamentally new structure for financial supervision in Europe. Was this matter discussed at the Council meeting and what progress has been made? The Taoiseach: In adopting the Van Rompuy report, the Council is involved in preparing six legislative proposals by early summer of next year, four of which will involve, as I understand it, the involvement of the European Parliament. The proposals are designed to strength the Stability and Growth Pact and the EU regulatory framework for members states’ public finances and to broaden the scope of economic surveillance beyond the budgetary position. The proposals aim to achieve these by enhancing the importance of the debt criteria, introducing sanctions, including financial sanctions, for euro area member states in the case of persistent non-​compliance with the Stability and Growth Pact and a tiered range of procedures and sanctions designed to prevent the emergence of macroeconomic imbalances in a member state that, if left uncorrected, could ultimately jeopardise the functioning of the euro and the euro area. The Commission’s legislative proposals will be subject to the normal procedure of consultation and discussion with member states. We will engage positively in that process, taking account of our own circumstances and needs. The Council has set the summer of 2011 as a target for agreement with the European Parliament in the Commission’s legislative proposals. There are six Commission legislative proposals —​a directive on requirements for budgetary frameworks, two regulations amending existing regulations on the Stability and Growth Pact, two regulations relating to the introduction of new arrangements for the surveillance of macroeconomic imbalances and a regulation on proposed financial sanctions in the event of persistent non-​compliance with budgetary obligations on the part of euro area member states. Specifically regarding the question of regulation of credit agencies and where that is at the moment, perhaps the Minister for Finance should be asked where that is with the euro area ECOFIN group. I do not have that information before me, but I know that it is a matter that is under discussion and work is ongoing in respect of it. The earlier matter referred to by the Deputy related to the questions of markets and the discussion. I share a concern about the need for avoiding read-​across by markets…

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Questions to ministers

Questions to ministers are answered according to a rota (with limits applying to the numbers of questions and the time spent answering and asking supplementary questions) and require four days’ notice. The following question to a minister is interesting because it shows that such questions can be used to obtain answers about the activities of a European institution, even though the activities of that institution are not under the control of the Minister’s Department, provided that information surrounding the activities in question is available or produced by a body controlled by the Minister’s department.284

Textbox 5.3.  Example of a question to a minister concerning an EU-​related issue Deputy Olwyn Enright asked the Minister for Finance the extent to which banks are currently depending on European Central Bank liquidity support; his views on whether the terms in which its support is available will be tightened; and the implications of such changes for Ireland. Deputy Brian Lenihan: The latest Central Bank statistics, released on 1 February, show that Eurosystem borrowing by credit institutions resident in Ireland has fallen significantly from its highs of last summer. Borrowings at end December 2009 stand at €91.9 billion, down from the high of €130 billion in June 2009. These numbers reflect not just Irish headquartered banking groups but include subsidiary operations of international groups operating in Ireland. While the Central Bank publishes figures which cover all credit institutions operating in Ireland, including the IFSC credit institutions, it does not publish figures for individual institutions as these are highly market sensitive. The total aggregate balance sheet of all institutions is €1,306.9 billion, of which €91.9 billion represents ECB lending at end 2009, that is, 7% of aggregate assets. Funding from the ECB is an important part of funding not just for covered institutions but for all credit institutions and was a common feature even before the recent turmoil in the markets. For example, in December 2006, €27 billion of the aggregate balance sheets of all credit institutions operating in Ireland represented ECB lending. It would be inappropriate for me to speculate upon or pre-​empt the decisions of the ECB governing council concerning future funding decisions, but should it bring forward changes to funding policy this might be a good indication that wholesale funding markets are improving and returning to proper functioning.

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The ECB has indicated publicly that it is engaging in the progressive, timely and gradual phasing out of the non-​conventional measures which had been introduced in response to the financial crisis but that liquidity will remain abundant for months to come. As such, there are no negative implications in the medium term from the announced “phasing out” measures.

Leaders’ questions285

These allow Opposition party leaders to pose questions to the Taoiseach without prior notice, in order to enable topical issues to be aired. The following leader’s question concerned an important issue of EU policy. The mutually critical tone both of the question and of the response is a useful reminder of the political role which questions have to play, and their use as a device to secure political advantage by embarrassing one’s political opponents. The mechanism of leaders’ question was used here to secure ex post facto accountability286 concerning a meeting of the ECOFIN Council involving a very large financial commitment on the part of the Irish state.287

Textbox 5.4.  Example of a leader’s question concerning an EU-​related issue Deputy Enda Kenny: Last weekend, the EU Finance Ministers put together a package of €750 billion for the relief of distressed eurozone economies. I am disappointed that the Dáil did not have an opportunity to discuss the matter, as allowed under the Lisbon treaty, in advance of its being considered by the EU ministers. While the new mechanism is necessary, it is insufficient in so far as it will not deal with the structural deficiencies in the economies of vulnerable eurozone countries, including Ireland. Although it will deal with debt liquidity for a period of time, it will not deal with the financing pressures that will arise in the future in the absence of a serious and determined programme of competitiveness, growth and investment. Ireland is no different —​we cannot plan for a jobless recovery… The Taoiseach: The decisions taken by the European Council and ECOFIN over the weekend were taken as a rapid response to what the European Central Bank regarded as the prospect of a systemic risk to the euro currency, beyond the Greek situation alone. The original purpose of

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last Friday’s meeting was to finalise the arrangements relating to Greece. It was not a question of not giving prior notice of issues that were coming up. This issue had to be dealt with as a matter of urgency. It was dealt with quite well by the European Council and ECOFIN over the weekend. Rather than running down the prospects of the euro and the country, it is far better to acknowledge that the market has reacted positively. The statement also referred to the structural issues that have to be dealt with, in terms of deficit reduction, by all countries with such issues. There has been an acknowledgment that the Irish Government and the Irish economy started that structural adjustment in 2009. There was an adjustment of 5% in 2009 and an adjustment of 2.5% in 2010. While we have to remain vigilant, further adjustments which will lead to a reduction in the deficit have to be made. The international markets have shown an acknowledgement and an acceptance of the credibility of the Irish position. The European Commission, the European Council and ECOFIN are clearly emphasising the need to have a more effective surveillance and monitoring mechanism, in respect of the stability of the euro, in the future. The task force that is working under the Presidency of Herman Van Rompuy will have to accelerate its work. The proposals to be made by the Commission this week will make an input into that. When people are commenting on these matters, I ask them to acknowledge the commendations that have been given to the Irish so far. While we should not be self-​ congratulatory in any way, that which is acknowledged externally might be acknowledged at home as well…

Private notice questions

These are permitted by the Ceann Comhairle (although rarely)288 to be put without prior notice thereby allowing matters of urgent public importance to be raised. Private notice questions can raise European issues.289 Priority questions

These allow parties sufficiently strong to form groups to “jump the queue” to ask questions on specific issues at the start of ministerial question time. In the following example, priority questions were used to explore issues concerning the Common Agricultural Policy.290 The question also elicited information about a Council meeting recently attended by the relevant Minister.

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Textbox 5.5.  Examples of priority questions concerning EU-​related  issues 10. Deputy Seán Sherlock asked the Minister for Agriculture, Fisheries and Food his views on the three options outlined in the Common Agricultural Policy reform proposals communication recently published; and if he will make a statement on the matter. 11. Deputy Noel J. Coonan asked the Minister for Agriculture, Fisheries and Food the response and submissions he will make to the European Commission following the recently published discussion document on Common Agricultural Policy reform from the Commission entitled The CAP towards 2020: Meeting the food, natural resources and territorial challenges of the future; his response to the report and when he expects to communicate his proposals to the EU Commission; and if he will make a statement on the matter. Deputy Brendan Smith: I propose to take Question Nos. 10 and 11 together. I must first underline some fundamental points that we should bear in mind in this CAP reform. Now, more than ever, we need to focus on ensuring security of supply of safe, high quality and sustainably produced food —​at reasonable prices for our consumers, and with reasonable returns to our farmers and processors. In order to achieve this we will require a strong and adequately resourced CAP. I agree with the communication that “the CAP should remain a strong common policy, structured around its two pillars”. However, I would caution that, to be meaningful, this will require appropriate resources and this must be reflected in the new financial framework. Although three options for CAP reform are outlined in the recent Commission communication, it is clear that the main option under consideration is the second option for a better targeted and effective policy. I had the opportunity to give my first reaction to the communication at last Monday’s meeting of the EU Council of Agriculture Ministers. This was the first step in what will be a lengthy process of negotiations. Over the coming months, we will discuss the communication in greater detail with a view to agreeing conclusions on the general orientation of policy for the CAP after 2013, before the legislative proposals, due next July, are framed. I will be participating actively in that process and I will continue to build up alliances among my colleagues in other member states to secure support for my position.

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The communication is short on detail so I would reserve our position on many of the substantive issues until such time as detailed proposals are presented. Having said that, I welcome the commitment of the Commission to a strong CAP in the future and I subscribe to the three strategic aims that have been identified of ensuring security of food supply, sustainable management of natural resources and maintenance of viable rural areas. I also welcome the commitment to the continuation of decoupled direct payments, the maintenance of the current rural development themes and the retention and enhancement of market management measures, although I would have preferred to see more specific proposals to address the increase in market volatility…

Questions for written answer

An unlimited number of these can be asked once three days’ notice is given.They are used for administrative and constituency issues as well as policy issues. Questions for written answer relatively frequently involve EU issues. In the following exchange, one was used to exact executive accountability over the implementation of a Directive by ministerial regulation.291

Textbox 5.6.  Example of a question for written answer concerning transposition into Irish law of an EU directive by ministerial regulation Deputy Michael Fitzpatrick asked the Minister for Enterprise, Trade and Innovation the reason his Department deleted paragraphs 3, 4 and 5 of Schedule 2 of Statutory Instrument No. 220 of 2010, the European Communities (Statutory Audits) (Directive 2006/​43/​EC) Regulations 2010, that were contained in earlier drafts; if his attention has been drawn to the fact that one of the recognised accountancy bodies has made representations on this matter seeking discussions on the decision to delete these paragraphs to which they did not receive any reply from his Department in advance of the signing of the regulation; and if he will make a statement on the matter. Minister for Enterprise, Trade and Innovation (Deputy Batt O’Keeffe): Directive 2006/​43/​EC was transposed by means of S.I. No. 220 of 2010 on 20th May, 2010. No amendments have been made to the Regulations since and no paragraphs have been deleted from Schedule 2 of S.I. No. 220 of 2010.

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In June 2007, the Department established a group consisting of the six Recognised Accountancy Bodies (RABs) and the Irish Auditing and Accounting Supervisory Authority (IAASA) to assist with the transposition of the Directive. The group met at regular intervals and considered each of the Articles of the Directive in detail. The Department undertook a formal written consultation in July 2008 in relation to Articles 9, 11 and 12 concerning optional derogations from standards of knowledge, education, competence and training for auditors. The majority of the recognised accountancy bodies were strongly of the view that to avail of the derogations provided in these Articles could seriously diminish the quality and status of the professional qualification. In addition, the Irish Auditing and Accounting Supervisory Authority (IAASA), which has responsibility for promoting adherence to high professional standards in the auditing and accountancy profession, were concerned about any dilution in educational standards relating to qualification. In its view this could seriously compromise the integrity of the system of auditor qualification in Ireland. In the light of these views, it was decided not to avail of these derogations and this was communicated to the group in advance of making the Regulations. I am aware that representations have been made by one of the recognised accountancy bodies and a reply will issue to this body on the issues raised as soon as possible.

More basic information about a directive’s implementation was obtained by the following question for written answer. This showing the usefulness of this device. However the need for recourse to it simultaneously illustrates a lack of more systematic Oireachtas control in controlling implementation of EU law.292

Textbox 5.7.  Example of a question for written answer concerning plans for the transposition of an EU directive Deputy Kathleen Lynch asked the Minister for Enterprise, Trade and Innovation the current position and timeframe for the transposition of the Services Directive; and if he will make a statement on the matter.

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Minister for Enterprise, Trade and Innovation (Deputy Batt O’Keeffe): The European Union (Provision of Services) Regulations 2010 (S.I. No. 533 of 2010) were signed into law by me on 10th November 2010. The Regulations give effect in Ireland to the Services Directive with the exception of the European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010 (S.I. No. 555 of 2010), which, inter alia, transpose Article 42 of the Directive. The second set of Regulations also transpose Directive 2009/​22/​EC on injunctions for the protections of consumers’ interests (codified version) and revoke the European Communities (Protection of Consumers Collective Interests) Regulations (S.I. No. 449 of 2001), which transposed the original Injunctions Directive. The Injunction Directive ensures that consumers’ rights, as set out in a number of other Directives, can be protected by providing a means by which Member States can bring an action to stop any breaches of consumer rights under the Directives in question. The decision to transpose Article 42 of the Services Directive in the European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010 (S.I. No. 555 of 2010) was taken for reasons of transparency. Article 42 adds the Services Directive to the list of Directives that are covered by the Injunctions Directive.

Finally, the following example of a question for written answer elicited information about the progress of negotiations on a draft EU directive and on the Irish Government’s negotiating position.293

Textbox 5.8.  Example of a question for written answer concerning negotiations on a draft EU directive and the national negotiating position Deputy Lucinda Creighton asked the Minister for Finance if he will report on the progress of the Alternative Investment Fund Managers Directive; and if he will make a statement on the matter. Minister for Finance (Deputy Brian Lenihan): The Alternative Investment Fund Managers (AIFM) Directive proposal remains the subject of intense negotiation between the European Council, the European Parliament and the European Commission. Presently, it is envisaged

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that the European Parliament will vote on a compromise proposal on 18 October at its plenary meeting. Ireland is working constructively in this negotiation process. By way of background, the proposed Directive has two main aims to establish a secure and harmonised EU framework for monitoring and supervising the risks that AIFMs pose to their investors, counterparties, other financial market participants and to financial stability; and to permit, subject to compliance to strict requirements, AIFMs to provide services and market their funds across the EU’s internal market (the so-​called “passport”). AIFMs manage hedge funds and private equity funds as well as commodity funds, real estate funds and infrastructure funds. The proposal is essentially aimed at the managers of any investment fund not covered of the Undertakings for Collective Investments in Transferable Securities or UCITS Directive. Sovereign wealth funds are not included within the scope of the proposal. The proposal is part of the EU’s efforts to reform the financial regulation environment in Europe aimed at ensuring that the recent economic and financial turmoil is not repeated.

Debates European issues also feature to a considerable extent in Oireachtas debates.294 Although precise estimates of the extent of this are difficult to make,295 one study calculated that approximately 213 Dáil debates in the year 2010 had involved discussion of specific EU issues.296 Of the 100 days on which the Dáil sat that year, the same study indicated that only on twelve of these days were no EU issues raised.297 European issues were, it is reported, raised most often in debates on the order of business (sixty-​four times), followed by debates on legislative bills (forty-​nine times), debates on motions (a mechanism used for debating matters for decision by the House)298 (thirty-​three times), adjournment debates (superseded in the 31st Dáilby topical issues debates)299 (thirty-​one times) and statements (which are a mechanism used for dealing with matters which do not require a decision by the House (sixteen times).300 This kind of analysis is purely quantitative, not qualitative, however, and it should be borne in mind that more useful and thorough debate may be conducted on a given motion or statement, rather than on the order of business, even if European issues surface more often in the latter kind of debate.

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A flavour of the manner in which European matters can surface in a debate concerning the order of business is given in the following exchange, which took place in January 2010.301

Textbox 5.9.  Example of a debate concerning the order of business in which EU-​related issues were raised Minister for Finance (Deputy Brian Lenihan): It is proposed to take No. a13, motion re membership of committees; No. b13, motion re referral of papers to the Joint Committee on Health and Children; No. 24, statements on the mid-​west task force; No. 13, motion re proposal that Dáil Éireann notes the report of the Joint Committee on European Scrutiny, EU Scrutiny Report No. 29: COM (2009) 499, 500, 501, 502 & 503 —​Draft legislative package on reforming the EU’s financial supervisory and regulatory framework; and No. 23, Planning and Development (Amendment) Bill 2009 [Seanad] —​Second Stage (resumed)… An Ceann Comhairle: Is the proposal for dealing with No. 24 agreed to? Agreed. Is the proposal for dealing with No. 13 agreed to? Deputy Enda Kenny: I agree with it. I will not have an opportunity to speak on this debate but I call on the Minister for Finance to note that I have raised the matter of European scrutiny with the Taoiseach and Tánaiste on a number of occasions. Under existing facilities and prior to the Lisbon treaty we did not have the capacity to examine the way particular directives were transposed into Irish law, as against being transposed into law in other countries. This has a particular impact in a number of areas. In the context of this report, which is important, and now that the Lisbon treaty has been passed, I call for the Joint Committee on European Scrutiny to have the opportunity to take a small number of directives and examine the way they have been transposed into law here, because there are implications for the smooth running of business and for the operation of a number of sectors in Ireland. This should be feasible now that the Lisbon treaty has been passed. I recommend this proposal strongly as I will not have an opportunity to contribute to the debate. Deputy Brian Lenihan: Deputy Kenny makes a fair point. I take it he is referring to the issue of whether it is implemented by statute or regulation and it is important that there should be parliamentary involvement in that. I will draw it to the attention of the Taoiseach.

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Deputy Joe Costello: On the same issue, it is very welcome that we hold a debate on an item coming through from the Joint Committee on European Scrutiny. I welcome the measure and I wish to see it extended, as we all do, with the enhanced role promised under the Lisbon treaty. Will the Minister for Finance—​ An Ceann Comhairle: These points have been heard. The Deputy will have an opportunity to make them during the debate. Deputy Joe Costello: There are two directives being signed at present, the services directive, which is very controversial, and the flooding directive. They are being passed into Irish law by statutory instrument without the slightest involvement of the House. An Ceann Comhairle: The Deputy will have the opportunity to make those points during the debate. Deputy Joe Costello: We are beginning the process of the enhanced role of the national Parliament through the Lisbon treaty and at this point the Government is doing the exact opposite. An Ceann Comhairle: Is the proposal for dealing with No. 13 agreed to? Agreed.

Topical issues debates allow TDs to give notice to the Ceann Comhairle of issues of concern to them. The Ceann Comhairle then selects four issues for debate on a single day. Any TD concerned makes a four-minute initial statement and the Minister has the same amount of time to reply. The TD then has two minutes for a supplementary statement and the Minister the same for a concluding statement. These debates replaced the earlier late-night adjournment debates (on issues of the day) which were plagued by Ministerial non-appearances, but topical issues debates too have been plagued by similar problems, with replies frequently being read from a script by ministers with no knowledge of the issue.302 European issues can sometimes constitute the topic of such debates as can be seen from the debate below from February 2015.303

Textbox 5.10.  Example of a topical issues debate in which EU- related issues were raised Deputy Paul J. Connaughton: I thank the Ceann Comhairle’s office for giving me the opportunity to raise this issue. I understand the Minister for Agriculture, Food and the Marine is not available today to take the matter in the Chamber due to a busy schedule.

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I am concerned about the publishing of the full details of those receiving single farm payments. I accept it has come about from a decision by the European Commission. My concern is not over transparency or accountability in the payments system as this is European taxpayers’ money being spent. We know from the single farm payment we get job security, food security and food quality. My concern, however, is from the perspective of rural crime. We will be publishing on a set day the names and addresses of individual farmers receiving X amount of money. That is making it a little too easy for a criminal who might want to pick off someone who lives in an isolated rural area. Ministers and the Department always like to announce when the single farm payments will be paid, as it is a good news story and an event for which the farming community waits. Why do the name and the address of the recipient have to be published? Why not the name and just the county or the herd number and the amount? It must be possible to make it more difficult for criminals. I have no doubt the ministerial reply will explain how this whole process was arrived at. However, we can be very overzealous in how we implement European Commission rules. Did the Department have an opportunity to say it has an issue with this? This process was to be introduced several years ago but three German farmers stopped it at the time. The European Court of Justice deliberated on it for some time and here we go again. Outside of farming, we have very strict and correct data protection laws. One cannot even make a telephone inquiry about a family member’s health appointment or insurance details because of data protection regulations. In this case, however, we are publishing detailed information about the farmers and the amounts they have received. I cannot understand how that does not run against data protection law. The European Court of Justice certainly thought it did several years ago. We need to be very careful how we set this out. Were the farming organisations consulted on this? I do not know why we have gone the whole hog in publishing all these names and addresses. The Department is only too well aware of the amounts farmers receive from the scheme, as it is very quick to claw it back when it believes it has overspent. There is a very clear and transparent system there already. Will the Minister go back to the European Commissioner, Phil Hogan, to ensure this information is not as detailed when published to ensure the protection and safety of farmers? Minister of State at the Department of Justice and Equality (Deputy Aodhán Ó Ríordáin): I thank Deputy Connaughton for raising this very important

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issue. The Minister for Agriculture, Food and the Marine is unfortunately not available to take the Topical Issue but I am responding in his place. Prior to November 2010 member states were obliged under EU legislation to publish information - names, addresses and amounts received - on recipients of amounts paid out of the European Agricultural Guarantee Fund, EAGF, or European Agricultural Fund for Rural Development, EAFRD, CAP funds. This information was made available on the Department of Agriculture, Food and the Marine website and, in line with EU requirements, included a search engine to permit users to search the database using different criteria. On 9 November 2010, following its judgment in a case taken by German CAP beneficiaries, the European Court of Justice found that aspects of EU legislation requiring the publication of information on beneficiaries of CAP funds, who are natural persons, were invalid. On the day that the judgment was delivered the Department of Agriculture, Food and the Marine took down the CAP beneficiaries’ database from its website. Following that judgment and pending the adoption of new rules taking account of the objections expressed by the court, the EU Commission adopted amending legislation in order to lay down explicitly that the obligation to publish the information on the beneficiaries does not apply to natural persons. However, they instructed member states to continue to publish information on legal persons and the Department has done so on an annual basis. Following the extensive analysis and the consultation with the stakeholders, the EU Commission determined that it was critical that any new proposal must observe a balance between the pursued objective of the public control of the use of the money from the EAGF and the EAFRD on the one hand, and the beneficiaries’ right to respect for their private life in general and to protection of their personal data on the other. In September 2012 the Commission made a proposal on the publication of data on amounts received by all beneficiaries - natural and legal persons - that was intended to take account of the European Court of Justice judgment. The Commission’s basic rationale was that it considered it vital to inform citizens how Union funds are being spent and that the new rules are based on a justification centred on the need for public control over the use of funds. The proposals were the subject of intensive discussion at Council meetings and subsequently in the formal discussions with the EU Commission and the European Parliament which led to the adoption of the new CAP and the legislation which underpins it. In accordance with EU legislation the Department of Agriculture, Food and the Marine is obliged to ensure annual ex-post publication of all of the beneficiaries of CAP funding including both legal and non-legal persons.

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In accordance with regulations the Department must publish the name of the beneficiary, unless the amount of payment under CAP funds is less than €1,250 in which case the individual will be identified by a code; the municipality where the beneficiary is resident; the amount of payment corresponding to each measure received by a beneficiary; and the nature and description of each measure. In accordance with the regulation the Department will publish such information by the 31 May 2015 deadline. Work is currently ongoing within the Department on this issue. Deputy Paul J. Connaughton: I thank the Minister of State for the response. The last line is the bit I am most concerned about, which I think should be reconsidered, is where it states they are going ahead with this by 31 May and that is it. No one is hiding anything here. The Department is well aware of what each farmer receives. The EU auditors are over here every year making sure every cent of taxpayers’ money is spent properly and, if it was not being spent properly, we would know about it and the whole of Europe would know about it. I am not sure why we are so hell bent on this extra step forward all of the time. I will always bring it back to the local. I apologise for being parochial but I cannot understand, particularly for those in very rural constituencies who may live a number of miles away from their neighbours, why we have to publish the name, address and amount of money they are about to receive and then we announce when they receive it. If a gang of criminals wants to target a house or farm, we effectively tell them when the money is going to arrive. I really cannot understand this and the matter should be re-examined. Again, I want to state publicly that this is not about accountability or wanting to prevent transparency. We have that already. The Department should just publish the county and name, for example - County Galway, Paul Connaughton and the number. That does not mean much to anybody but people will know what I received. Why we have to give the address and other details is really beyond me. In some parts of our society, such as health or education, we are very strict on data protection law, and correctly so. All of a sudden, for farming, data protection does not seem to be talked about due to this over-zealousness of the European Union. These proposals were knocked back a few years ago and here they come again. I request that the Minister, Deputy Coveney, go back to the Commission and say we have some concerns. He should ask that we address them and arrive at a fair and feasible solution where we give the Commission the transparency it wants while protecting the identity and addresses of farmers.

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Deputy Aodhán Ó Ríordáin: The Deputy makes a fair comment about what are effectively security concerns. It is reasonable that he would make his concerns known in the House. I will convey them to the Minister for Agriculture, Food and the Marine and we will see if we can make some progress.

As regards adjournment debates, the rarity of ministerial appearances for  these led, during the 31st Dáil, to their replacement by so-called 'topical issues debates'. These have been reportedly plagued by the same problem, however, with large numbers of answers being read from a script by ministers with no knowledge of the issue.304  The amount of discussion in debates on motions varies considerably. Motions in compliance with Article 29.4.7° of the Constitution concerning approval of the exercise of options under Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice305 are frequently adopted without any debate at all, as the following example demonstrates. It was followed by a motion (also adopted without debate) approving the terms of the Council of Europe Convention on Action against Trafficking in Human Beings, in accordance with Article 29.5.2° of the Constitution.306

Textbox 5.11.  Example of a motion in compliance with Article 29.4.7° of the Constitution concerning approval of the exercise of an option under Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice Minister of State at the Department of the Taoiseach (Deputy John Curran): I move: That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure: a proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/​629/​JHA,

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a copy of which was laid before Dáil Éireann on 28 April 2010. Question put and agreed to. Minister of State at the Department of the Taoiseach (Deputy John Curran): I move: That Dáil Éireann approves in accordance with Article 29.5.2 of Bunreacht na hÉireann, the terms of the Council of Europe Convention on Action against Trafficking in Human Beings, a copy of which was laid before Dáil Éireann on 13 May 2010.

Question put and agreed to.

Regarding debates on statements, Caffrey has observed that “matters that do not require a decision by the House are often dealt with by means of statements. Under [Standing Order] 43, a member of the Government who has given prior notice to the Ceann Comhairle can make a statement to the House on any matter.”307 One particularly important form of such statement in the EU field has been the formal statement which the Taoiseach makes to the Dáil after European Council meetings explaining, from an Irish national perspective, what has taken place. The tradition of such statements dates from the origins of the European Council in the mid-​1970s. The statements have been termed “a useful device to ensure that deputies are aware of the major issues as they evolve on the EU agenda and on the outcome of EU deliberations at the highest level.”308 As an accountability method, practice here was for long unsatisfactory. Thus e.g., the Dáil received only four ex post briefings in 2010, although the European Council met five times (in addition to a further informal summit meeting).309 Briefings were often considerably delayed: the eighty-​five-​minute debate after the European Council meeting of 24–​25 March 2011 took place only on 13 April, substantially reducing its political relevance. The programme for government for the 31st Dáil promised ex ante briefings would be added.310 Thereafter, the Taoiseach provided a statement to the Dáil just prior to European Council meetings (followed in practice by Opposition party leaders’ statements). The practice of providing ex post statements to the Dáil also continued. These were followed by Opposition party leaders’ statements (with speaking time occasionally shared with party spokespersons on European affairs) and questions (open to all TDs) generally answered by the Minister of State for European Affairs. Neither ex ante nor ex post sessions were usually particularly well attended.

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An unrelated further improvement of relevance made in debates in the 31st Dáil period was that in 2013, Dáil Standing Orders were amended so that (subject to certain exceptions) a newly set-​up Parliamentary Steering Group on EU Affairs was required to “prioritise for debate in the Dáil motions in regard to reports from the Select Committee on European Affairs or on other related EU matters”. It was stipulated that “such business shall take precedence over other business in the Dáil…”311 The evident aim was to end the situation in which committee reports on EU-​related affairs languished undebated by the plenary of either chamber. It was probably anticipated, however, that such reports would be more numerous than subsequently proved to be the case.

Other miscellaneous aspects of the Oireachtas role in European affairs The role of the Seanad The Seanad (upper House), has sixty members. Forty-​three are elected by five quasi-​vocational panels312 (comprising only 1,160 individuals in the 2016 elections)313 Three are elected by National University of Ireland graduates, three by Trinity College Dublin graduates and eleven are appointed by the Taoiseach. As the vocational panels are politicised and the Taoiseach’s appointees are also chosen with regard to party affiliation, the Seanad is, like the Dáil, dominated by party politics, rather than the largely vocationally representative institution it was originally intended to be.314 Legally the weaker of the two Houses, it meets less often than the Dáil (106 days as opposed to 118 in 2015), for shorter hours (666 hours as opposed to 974 in 2010),315 and its members are paid less. Although much of what has been said of procedural arrangements in the Dáil also applies regarding the Seanad, some further observations may be added. The Seanad has occasionally shown itself open to playing a role in European affairs going beyond that of the Dáil. As noted in Chapter 3, in 1978 the second and subsequent Joint Committees on the Secondary Legislation of the European Communities were enabled to have their reports debated in either or both Houses if they requested. Many more such debates occurred in the Seanad than the Dáil. E.g., during the 1982–​87 Fine Gael–​Labour Coalition, twenty-​five of thirty-​six Joint Committee reports (i.e., 69%) were debated in the Seanad (compared to just one in the Dáil). Many proposals have been made over the years for the Seanad to be given a greater role regarding European affairs. Manning has observed that throughout its history, “and with varying intensity the role and existence of the Seanad has been questioned” –​making it “the only major Irish constitutional institution whose very

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existence has been called into question on several occasions”.316 Such questioning reached its apogée with the Thirty-​second Amendment of the Constitution (Abolition of Seanad Éireann) Bill 2013, a government-​sponsored proposal to abolish the upper house, which was however defeated when put to the electorate in referendum.317 The mixture of (a) this need to find a raison d’être and a role for the Seanad, with (b) the need to improve the Oireachtas performance in securing accountability regarding European policy has fuelled many calls to augment the Seanad’s role in EU policy. Such calls are examined in Chapter 6.

Administrative staff and the role of the Oireachtas National Parliament Office in Brussels Oireachtas administrative staff play a vital role in European policy matters. Numbers are small. Thus e.g., the committee secretariat generally has approximately thirty-​five staff members. Each committee has at least one clerk and one other person working for it. A committee may be given more staff, depending on its workload. The Joint Oireachtas Committee on European Union Affairs has a staff of four: a clerk, a policy adviser, a junior clerk who carries out administrative work and a clerical officer. The Oireachtas EU Coordination Unit has a staff of three: a principal clerk, a senior clerk and a clerical officer. A further five EU policy clerks advise the various sectoral committees on EU affairs.These sectoral committees also have policy advisers to advise them on domestic matters. The Library and Research Service has a body of researchers to carry out research (frequently with an EU dimension) for parliamentarians. Cutbacks over the recent period of financial crisis led to staff reductions, although such pressures have now diminished.318 Since 2004, the Houses have been represented in Brussels by the Oireachtas National Parliament Office, operating independently of the Permanent Representation to the EU. Its function is to support the Oireachtas in its EU-​ related roles. It provides information on what is happening in Brussels. In theory, it should also provide information on Oireachtas and Oireachtas Committee views to Brussels but in reality the traffic is largely in one direction, and the permanent representative does not seek to lobby the European Parliament or other institutions. The Office is a one-​person affair, comprising an Oireachtas representative drawn from the staff of the Houses of the Oireachtas Service.319 Unlike representatives from many of the larger countries, this individual has no support staff or secretary, and is expected to represent both chambers. Like other national parliamentary representations, the Office is provided with accommodation in the European Parliament’s building (although independent of that institution). The Oireachtas representative is one of twenty-​eight national parliamentary representatives. The representatives hold weekly meetings each Monday morning, a

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practice which facilitates informal exchanges of information. Access to such information is obviously important to the effective functioning of the subsidiarity mechanism. Among the more significant other activities of the office are the provision of a bulletin every two to three weeks called Latest Developments in the European Parliament and the EU,320 (summarising information on European legislation and other matters of relevance to Ireland); providing feedback on issues at the Monday morning meetings; and providing reports for Oireachtas Committees on the European Commission’s Annual Policy Strategy and Annual Legislative Work Programme. Ireland most recently held the Council Presidency in the first half of 2013. During the eighteenth-​month period of the Presidency troika beginning in July 2012, the permanent representative of the Irish Parliament also participated in the COSAC Secretariat.

Europe Day The first commemoration of Europe Day by the Oireachtas occurred in 2006 when both Houses met in joint session, one day after the fifty-​sixth anniversary of the Schuman Declaration (which led to today’s EU).321 The tradition of involving the Oireachtas in marking Europe Day was revived again on 9 May 2011, when a one-​hour special Dáil sitting was held, addressed first by the Taoiseach, then by the European Commissioner for Research Innovation and Science, Ms. Maire Geoghegan-​Quinn, followed by statements by party leaders (some of whom were strongly hostile to the EU).322 This was followed by a meeting in the Dáil Chamber of the Select Committee on Europe Day. This involved opening remarks by the Chairman of the Select Committee,323 contributions by Irish MEPs followed by questioning of MEPs, and a statement by the Minister of State for European Affairs.324 The programme for government during the period of the 31st Dáil, Government for National Recovery 2011–​2016 anticipated certain EU-​level proposals and initiatives being debated in the Oireachtas on a once-yearly basis, and involving the full House in these activities. It undertook that “the Oireachtas will devote a full week each year to debating major EU issues of concern to Ireland such as the Draft Annual Work Programme, Green and White Papers and proposals for EU budget co-​ordination”.325 It further elaborated that the EU Commission produces its Draft Annual Work Programme in October/​ November for the following year. We propose that the week in which the 9th May, “Europe Day” falls will be the occasion for a week-​long parliamentary debate on Ireland’s priorities within the EU. The debate will review the national progress in implementing the current year’s work programme and focus on identifying the major issues of concern to Ireland for inclusion on the following year’s EU Draft Work Programme.326

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Since 2011, Europe Week has remained a feature in the calendar of Oireachtas activities, Since 2013 reference to it has been written into Dáil Standing Orders.327 The level of enthusiasm with which it is engaged in varies, however. Once-​off annual debates seem unlikely to yield much in terms of early Oireachtas input concerning European initiatives, unless underpinned by a more comprehensive and year-​round strategy of Committee reports regarding the same issues. Government for National Recovery 2011–​2016 made no reference to such a strategy. The proposals seemed more an attempt to secure ad hoc engagement of the Dáil in plenary form in European affairs than a plan for efficient early intervention in EU policy-​making.

Notes 1 Limited reference to some subsequently-​occurring developments has been possible. 2 See generally, M. Gallagher, “The Oireachtas”, Chapter 7 of J. Coakley and M. Gallagher, Politics in the Republic of Ireland (fifth edition, Routledge, Abingdon, 2010). 3 The institution of a minority government tolerated (but only within certain limits) by the main Opposition party, following an inconclusive February 2016 election was hoped by many to herald a new approach to politics. At the time of writing, such expectations appeared to have been disappointed. (See M. Lehane and C. McMorrow, “A Year On, Has ‘New Politics’ Gone Stale?” RTE.ie, 10 March 2017.) 4 Ireland is not the only country where this has been the normal practice. See, for example, P.-​H. Spaak, The Continuing Battle:  Memoirs of a European (Little, Brown & Co., Boston, 1971) at 491. 5 Gallagher, “The Oireachtas”. 6 See Preface at p. x. 7 See H. McGee, “Ten Ways the Engine Room of Irish Politics Has Changed”, Irish Times, 28 February 2017. 8 Bulletin No-​2–​367/​157, July 6 1988. 9 BVErfGE 89, 155, translation from German by the author. 10 Conseil d’État 1993: 42–​48. 11 e.g., NRC Handelsblad 1–​6 October 2004. 12 M. Bovens and K.  Yesilkagit, “The Impact of European Legislation on National Legislation in the Netherlands”, Paper delivered to 2004 NIGH Conference, Erasmus University Rotterdam, 29 October 2004, 7. 13 M. Jenny and W. Müller, “From the Europeanization of Law-​ Making to the Europeanization of National Legal Orders:  The Case of Austria” (2010) 88 Public Administration 36. 14 Herzog, R., and Gerken, L. “Die Europäische Union gefährdet die parlamentarische Demokratie”, DieWelt, 13 January 2007. 15 A. Töller, “Measuring and Comparing the Europeanization of National Legislation: A Research Note” (2010) 48 JCMS 417.

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16 Ibid., 419–​420. 17 Assessing whether secondary legislation has a European link is particularly difficult. If adopted expressly to implement or give effect to a EU norm (or if a measure’s preamble refers to EU law), the link is clear. However, a statutory instrument may, without referring to EU law, implement legislation intimately linked with European law, in which case, it is probably appropriate to regard the instrument too as European-​related. Too restrictive an approach risks underestimating the influence of European law. Too broad an approach risks overstating it. 18 The Competition (Amendment) Act 2010, the Health (Miscellaneous Provisions) Act 2010, the Adoption Act 2010, the Social Welfare (Miscellaneous Provisions) Act 2010, the Prevention of Corruption (Amendment) Act 2010 and the Social Welfare and Pensions Act 2010. 19 Most also contained provisions which were unrelated to EU law. 20 A further six statutes contained references which may be categorised as peripheral: the Competition (Amendment) Act 2010, the Health (Miscellaneous Provisions) Act 2010, the Adoption Act 2010, the SocialWelfare (Miscellaneous Provisions) Act 2010, the Prevention of Corruption (Amendment) Act 2010 and the Social Welfare and Pensions Act 2010. 21 Most of these Acts also contained provisions unrelated to EU law. 22 Or 58% in 2010 and 38% in 2015 if statutes with more peripheral references to EU law are included. 23 Respectively 46% (in 2010) and 59% (in 2015) of all statutory instruments versus 43% (in 2010) and 32% (in 2015) of all statutes. 24 However, the European connection in non-​1972 Act statutory instruments is frequently less central than that in statutory instruments adopted under the 1972 Act. 25 This must be in accordance with the law for the time being in force relating to the referendum. See generally Article 46(2) of the Constitution. 26 Article 46(5) of the Constitution. 27 This was held on 2 October 2009 and passed by 1,214,268 votes (67%) to 594,606 (33%) on a turnout of 1,816,098 (59%). It was signed into law by President McAleese on 15 October 2009. 28 The Treaty Establishing a Constitution for Europe would have replaced the existing constitutive treaties but was rejected in referendums in France and Holland in May and June 2005 respectively before a referendum could be held in Ireland. 29 Subsequently renumbered by the Eighteenth Amendment of the Constitution Act, 1998 (which facilitated the ratification of the Amsterdam Treaty) and then again by the Twenty-​sixth Amendment of the Constitution Act, 2002 (which facilitated the ratification of the Nice Treaty), this provision was ultimately deleted by the Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009 (which facilitated the Lisbon Treaty’s ratification). 30 See G. Barrett, “The Treaty Amendment on the European Stability Mechanism: Does It Require a Referendum in Ireland?” (2011) 29 ILT 152 and note subsequent Supreme Court ruling in Pringle v. Government of Ireland and Others [2012] IESC 47. 31 Held on 31 May 2012 and passed by 955,091 votes (60%) to 629,088 (40%) on a turnout of 1,591,385 (51%). It was signed into law by President Higgins on 27 June 2012.

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32 See B. McMahon and F. Murphy, European Community Law in Ireland (Butterworth, Dublin, 1989), 271–​272. 33 Substituted by s. 3 of the European Union Act 2009. 34 Other than acts adopted on the basis of Treaty provisions relating to the CFSP. (See s. 2(1)(b) of 1972 Act (as substituted by s. 3 of the European Union Act 2009) and Article 275 TFEU.) 35 Other than acts adopted on the basis of the Treaty provisions relating to the CFSP. (See s. 2(1)(d) of 1972 Act (as substituted by s. 3 of the European Union Act 2009) and Article 275 TFEU.) 36 Which is itself annexed to the TEU, to the TFEU and to the Euratom Treaty. 37 Signed at Brussels on 16 May 2012 and annexed to the TEU and to the TFEU. 38 See further Article 288 TFEU. 39 See speech on Bill by the then Minister for Justice at Vol. 201 Seanad Debates (2 March 2010). See more generally, M. Barrett, Money Laundering and Terrorist Financing Act 2010: Annotated (Clarus Press, Dublin, 2011). 40 Council Decision 2006/​783/​JHA. 41 Council Framework Decision 2005/​214/​JHA. 42 Council Decision 2008/​617/​JHA. 43 Council Decision 2009/​426/​JHA. 44 Council Decision 2010/​616/​EU. 45 Council Framework Decision 2009/​299/​JHA. 46 Also to make provision to implement Directive 2009/​138/​EC and Directive 2014/​ 49/​EU. 47 Viz., the Twenty-​Eighth Amendment Of The Constitution (Treaty Of Lisbon) Act 2009. 48 The sole recorded contribution to the debate was by Dick Roche TD, Minister of State at the Department of Foreign Affairs, who observed “I move this with some considerable relief ” (Vol. 691 Dáil Eireann Debates (8 October 2009)). 49 Brian Lenihan TD. (Vol. 725 Dáil Debates (15 December 2010)). 50 Substituted by s. 3 of the European Union Act 2009. 51 Other than acts adopted on the basis of Treaty provisions concerning the CFSP. (See s. 2(1)(b) of the 1972 Act (as substituted by s. 3 of the European Union Act 2009) and Article 275 TFEU.) 52 Other than acts adopted on the basis of the Treaty provisions relating to the CFSP. (See s. 2(1)(d) of the 1972 Act (as substituted by s. 3 of the European Union Act 2009) and Article 275 TFEU). 53 Viz., under the conditions laid down in the Treaties. 54 See s. 3(3) as substituted by s. 2 of the European Communities Act 2007. 55 As inserted by s. 3 of the European Communities Act 2007. 56 Emphasis added. 57 See Standing Order 199 of Dáil Éireann and 158 of Seanad Éireann. 58 Although note the text below concerning parliamentary questions, particularly questions for written answer. 59 The European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations, 1980 (Statutory Instrument 306 of 1980)  were one of

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the worst examples, transposing Directive 77/​187/​EEC so poorly they subsequently had to be amended in order to avoid threatened Commission proceedings before the European Court of Justice. 60 See Government for National Recovery 2011–​2016 (Dublin, 2011), 25, available online at the time of writing at www.taoiseach.gov.ie/​eng/​Work_​Of_​The_​Department/​ Programme_ ​ f or_​ G overnment/​ P rogramme_​ f or_​ G overnment_​ 2 011–​ 2 016.pdf (accessed on 13 May 2017). 61 Ibid. 62 See Vol. 227 Seanad Debates (24 October 2013) at 163. 63 See Vol. 227 Seanad Debates (24 October 2013) at 162. The measure was to be reviewed in Summer 2014 with a view to its wider application, but Minister Varadkar (as he then was) left the Department in July 2014. Widespread inter-Departmental support reportedly existed during the lifetime of the 31st Dáil for making this pilot approach an expectation for all Government ministers, qualified by the caveat that this should be confined to where circumstances allowed and should take into account the sometimes tight timeframes for transposing large numbers of statutory instruments. 64 See Chapters  2 and 10 of F. Hayes-​Renshaw and H. Wallace, The Council of Ministers (Macmillan, Houndmills, 1997); and R. Dehousse and F. Deloche-​Gaudez, “Voting in the Council of Ministers: The Impact of Enlargement” in A. Ott and E.Vos (eds.), FiftyYears of European Integration: Foundations and Perspectives (TMC Asser Press, The Hague, 2009), 21. 65 L. O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland —​The European Affairs Committee, the Scrutiny Committee, and the European Union (Scrutiny) Act 2002” in G. Barrett (ed.), National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008) 273 at 287. 66 See Government for National Recovery 2011–​2016 at 25. 67 Beginning with the Foreign Affairs Council on 19 January 2015 and ending with the Environmental Council on 16 December 2015. 68 See further text below at p. 207 et seq., p. 31 et seq. and in Chapter 6. 69 Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 (Dublin, 2016) at 9. 70 Apart from legislative measures, these included budget documents, CFSP measures, Commission reports, communications, decisions, early warning notes and green papers. 71 See transcripts of committee debates available online at http://​oireachtasdebates. oireachtas.ie/​debates%20authoring/​debateswebpack.nsf/​yearlist?readform&chambe r=committees 72 Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 9. Such “reports” consisted mainly of contributions to the political dialogue. 73 Formerly referred to as the “Barroso” initiative after the then Commission president. See Commission Communication, A Citizens’ Agenda –​Delivering Results for Europe (COM/​ 2006/​0211 final). See now dedicated Commission website at http://​ec.europa.eu/​ dgs/​secretariat_​general/​relations/​relations_​other/​npo/​index_​en.htm 74 See Title I thereof.

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75 See Article 4 thereof. 76 See European Commission, Annual Report 2015 on Relations between the European Commission and National Parliaments (COM(2016) 471 final, Brussels, 15 July 2016), Annex 1; European Commission, Annual Report 2014 on Relations between The European Commission and National Parliaments (COM(2015) 316 final, Brussels, 2 July 2015), Annex 1; Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 9. One of the nine occasions in 2015 simply comprised the Joint Committee on the Environment, Culture and the Gaeltacht supporting a House of Lords draft law sent to the Commission (concerning food waste). 77 This topic is returned to in the text below. See p. 235 and Table 5.15. 78 Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality which was annexed at Lisbon to the TEU and to the TFEU. See also Article 5(3) TEU. 79 See Article 6 of Protocol (No. 2) and s. 7(4) of the European Union Act 2009. Dáil and Seanad Standing Orders also make provision in this regard. 80 Viz., for the purposes of Article 8 of Protocol (No. 2). 81 Article 8 of Protocol (No. 2) and s. 7(4) of the European Union Act 2009. 82 See Title I thereof. 83 See Article 4 thereof. 84 Annexed at Lisbon to the TEU, to the TFEU and to the Euratom Treaty. 85 See Article 7 of Protocol (No. 1). See generally Library and Research Service of the Houses of the Oireachtas, The Role andWork of Oireachtas Committees Relative to EU Affairs (December 2014) at 3. 86 See e.g., Joint Committee on EU Affairs, Report to Dáil Éireann and Seanad Éireann –​ Oireachtas Committees’ EU Scrutiny Work Programme 2015 –​Agreed. Since May 2013, the Dáil Select Committee on EU Affairs must present an annual EU work programme for adoption by Dáil Éireann by way of motion setting out its priorities and those of other Committees. (See Dáil Standing Order 112(2)(c).) A Parliamentary Steering Group on EU Affairs was established at the same time “to give parliamentary and cohesive direction in European Affairs matters [and] to enhance the role of the Dáil in EU affairs through engagement with the Government and through Dáil Éireann and its Select Committees”. (See Dáil Standing Order 111(1).) Over time, this Group may also provide more cohesiveness to Oireachtas activity in this area. 87 Library and Research Service of the Houses of the Oireachtas, The Role and Work of Oireachtas Committees Relative to EU Affairs (December 2014) at 4. 88 See Article 48(2) TEU. 89 See Article 48(3) TEU. 90 See Article 48(4) TEU and Article 48(6) TEU. 91 I.e., the ordinary legislative procedure. See generally Art 48(7) TEU, Article 29.4.8 of the Constitution and Section 7(1) of the European Union Act 2009. 92 Section 7(1) of the European Union Act 2009. 93 See Article 48(7) TEU. 94 See para. (i) thereof. 95 Taken either under the TEU or the TFEU. 96 See Article 29.4.8° (i).

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97 See Article 29.4.8° (ii). 98 See para. (ii) thereof. 99 Article 4 of the Protocol. 100 Article 5 of the Protocol. Cf. however Case C-​137/​05 United Kingdom v. Council of the European Union ECLI:EU:C:2007:805. 101 See para. (iii) thereof. 102 Article 2 of the Protocol. 103 See Article 4 thereof. 104 See Article 8 of the Protocol. 105 [2008] 4 IR 362. 106 [2008] 4 IR 362 at 377. Clear disregard by the Oireachtas of its constitutional duties would be needed to see its opt-​in invalidated by the Courts (Ibid.) In Iqbal, differences between the Framework Decision on the European Arrest Warrant and the earlier proposal approved by the Houses did not invalidate the approval, which was held to cover any reasonable and usual drafting changes. 107 Justice, Defence and Equality in the 31st Dáil and Justice, Defence and Women’s Rights in the 30th. Briefings are prepared for the Joint Committee by the Library and Research Services Committee team. (See e.g., Houses of the Oireachtas Commission, Annual Report 2010, 37.) 108 See e.g., motion regarding proposed Directive on attacks against information systems and repealing Council Framework Decision of 14 December 2010, adopted in Seanad without debate. 109 Excluding the Scrutiny and European Affairs Committees. See discussion of committees below. 110 Concerning a proposed regulation repealing certain acts in the field of police cooperation and judicial cooperation in criminal matters. 111 A motion on a proposal for a Regulation establishing an EU agency for law enforcement training; a motion to accept the Regulation on the establishment of “Eurodac”; a motion on an initiative for a Regulation amending a 2005 Decision establishing the European Police College; and a motion on a proposal for a Regulation amending the Regulation establishing a European Small Claims Procedure and the Regulation creating a European order for payment procedure. 112 Reputedly bitterly opposed by the then Minister for European Affairs, its existence may nonetheless have improved the chances of success of both Lisbon Treaty referendums. 113 Protocol (No. 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice. 114 Annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. 115 Government for National Recovery 2011–​2016 at 58. 116 See para. (iii) thereof. 117 Such directives must be agreed by unanimity by the Council. (Article 82(2)(d) TFEU.) 118 The ordinary legislative procedure (co-​decision) applies in adopting such directives. 119 Such regulations must be agreed by unanimity by the Council. (Article 86(1) TFEU.) 120 Any such extending decision must be agreed by unanimity by the European Council. (Article 86(4) TFEU.)

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121 See e.g., Joint Committee on European Scrutiny, Fourth Report: Special Report on New EU Legislation. 1 Jan to 30 June 2009 (October 2009). 122 Report of the Joint Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs (7 July 2010), para. 21. 123 Ibid. 124 Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 10. The Report does not state how many Departments (if any) complied with the requirement to submit two such reports annually. 125 Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 11. 126 The Secretary General of the Department of Agriculture, Food and the Marine, who attended twice. 127 The Secretaries General of the Department of Agriculture, Food and the Marine, of the Department of Environment, Community and Local Government, of the Department of Health and of the Department of Children and Youth Affairs. 128 During the 30th Dáil, the reports were generally received by the Joint Oireachtas Committee on European Scrutiny. Subsequently, they were received by the relevant sectoral Joint Committee. 129 Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 10. 130 Ibid.The observation concerning the lightening of the administrative burden seems to relate to the Sub-​Committee’s views concerning the limited usefulness of annual Government reports on developments in the EU. The Sub-​Committee felt these should be abolished. 131 See April 2014 report of the Joint Committee on EU Affairs Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs, para. 33. 132 Ibid., para. 34. 133 S. 5 itself refers to the Communities, but this is clearly now obsolete. In practice, each Department contributes material to a single combined annual report which is then compiled and submitted by the Department of the Taoiseach. 134 Ibid., para. 21 of the Report’s conclusions. 135 Recommendation 5 of the Sub-​Committee. 136 The problem of duplication goes even further than this: as then Foreign Affairs Minister Micheál Martin TD observed to the Sub-​Committee on 19 May 2010, beyond the six-​ monthly and annual reports, each Government Department is also required to publish an annual Report which includes substantial material on relevant developments at EU level. He suggested a more streamlined reporting system could both meet Oireachtas needs and lighten the administrative burden. 137 See Council of the EU, Presidency Conclusions of the Seville European Council (21 and 22 June 2002), Brussels, 24 October 2002 (13463/​02 POLGEN 52), Annex III. Note also declaration by the European Council itself in Annex IV. 138 See S. Martin, “The Committee System”, in M. MacCarthaigh and M. Manning, The Houses of the Oireachtas (Institute of Public Administration, 2010), 285 at 285. 139 Ibid., 302. 140 The election of the membership of the 30th Dáil took place on 25 February 2011. It first met on 9 March.

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141 Paragraph 1(a) of the Order. 142 Paragraph 5 of the Order. 143 See Paragraphs 1 and 2 of the Order. 144 See in this regard Articles 21 and 29.6 of the Constitution. 145 And both the Joint Committee on European Affairs and the Joint Committee on European Scrutiny during the lifetime of the 30th Dáil. 146 Source:  interview conducted by the author with member of Oireachtas staff, 28 September 2010. 147 S. Martin, “The Committee System” at 302. 148 Ibid. 149 The Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 was rejected in referendum by 928,175 votes (53%) to 812,008 votes (47%) on a turnout of 56%. 150 Depleted further by the appointment of Government ministers and Opposition spokespersons. 151 See further Chapter 2 and more generally, K. Auel, “Democratic Accountability and National Parliaments” (2007) 13 European Law Journal 487 at 500–​501. 152 B. Laffan, “The Parliament of Ireland:  A Passive Adapter Coming in from the Cold” in A. Maurer and W. Wessels (eds.) National Parliaments on their Ways to Europe: Losers or Latecomers (Nomos, Baden-​Baden, 2001) 251 at 260. 153 A member of the then opposition Fine Gael party. The sub-​committee was also a sub-​ committee of the Joint Oireachtas Committee on European Scrutiny. 154 Ireland’s Future in the European Union: Challenges, Issues and Options (27 November 2008). This report is considered in extensu in Chapter 6. 155 See Chapter 1. 156 The Joint Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs, chaired by Fine Gael TD Lucinda Creighton. Its report is examined in Chapter 6. 157 See Chapters 4 and 6. 158 Ibid. See also G. Barrett, “Oireachtas Control over Government Activity at European Union Level:  Reflections on the Historical Context and the Legal Framework”, ­chapter 6 in Barrett (ed.), National Parliaments and the European Union at 169 to 171. 159 European Movement Ireland, Accountability Report 2010 (Dublin, July 2011) at 44. 160 Source: author’s calculations based on online record of Joint Committee on European Affairs debates (See http://​debates.oireachtas.ie/​committees/​2010/​EU.asp) 161 J. Carroll, “Assessing the Role(s) of the Irish Parliamentarian in European Affairs in Ireland”, paper presented to Political Studies Association of Ireland Conference 2010, Dublin Institute of Technology, 9 October 2010 at 12. 162 Oireachtas committee members frequently posed questions to individuals appearing before the relevant committee only to be absent for the response. This problem was sought to be resolved in the 32nd Dáil by having committee meetings in the morning and Dáil sittings in the afternoon. 163 Orders of Reference, para. 2(b). 164 See European Movement Ireland, Accountability Report 2010 at 23. 165 Carroll, “Assessing the Role(s) of the Irish Parliamentarian in European Affairs in Ireland” at 13.

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166 Information collated by author based on study of attendance records.The author’s figures correspond with those published by European Movement Ireland, Accountability Report 2015 (Dublin, 2016). The same reports recorded attendances in 2011, 2012, 2013 and 2014 as respectively, 71%, 64%, 60%, and 61%, giving an average attendance of 63%. 167 Joint Committee on EU Affairs, Annual Report 2015 (January 2016). 168 O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland” at 17. 169 The latter was known, prior to the 2009 entry into force of the Lisbon Treaty, as the External Relations Council. 170 See Paragraph 4.1, Sub-​Committee on European Scrutiny, Fourth Annual Report on the Operation of the European Union (Scrutiny) Act 2002:1 January 2006 to 31 December 2006 (March 2007). 171 Respectively, Mr Micheál Martin TD and Mr Dick Roche TD. 172 See K. Meenan, “What is the Role of a Committee on European Affairs?”, Chapter 11 in Barrett (ed.), National Parliaments and the European Union at 317. 173 Ibid. at 318. 174 Carroll, “Assessing the Role(s) of the Irish Parliamentarian in European Affairs in Ireland” at 19. 175 See www.parliament.uk/​business/​committees/​committees-​a-​z/​lords-​select/​eu-​select​committee-​/​publications/​ (accessed on 13 May 2017). 176 Reports appear to be available only in relation to years 1995, 1997–​98 (one report), 1999, 2000 (not an annual report in the real sense of the term), 2001, 2002–​03 (one report), 2004, 2005, 2006, and a report for three months in 2007. 177 Many annual reports did not concern activities which happened in the year in question. E.g., the 1997–​98 report contained information relating to activities that occurred in 2001. Many reports were published years after the year referred to in their title. The Annual Report 2005 was published in April 2006, the Annual Report 2004 was published in May 2006 and the Annual Report 2002/​2003 appears to have been published only in July 2006. 178 The Committee’s annual reports frequently conflated mere statements and “meeting reports” with substantive reports on European policy issues. 179 The last of these was published in 2007. The practice of annual reports was revived in the 31st Dáil period when the 2011 annual report was published in February 2012 (covering the (post-​election) period of June to December 2011). Subsequently, an annual report was published each year. 180 See Laffan, “The Parliament of Ireland” at 264. 181 Author’s research from data available on the Oireachtas website. 182 Orders of Reference setting up the Joint Committee during the 29th Dáil were made on 7 October 2002 (Seanad) and 16 October 2002 (Dáil), five months after the General Election.The Orders of Reference setting up the Joint Committee during the 30th Dáil had to await 24 October 2007 (Seanad) and 27 October 2002 (Dáil), again five months after the General Election. The Orders of Reference setting up the Joint Committee during the 31st Dáil took until 16 June 2011 (Seanad) and 8 June 2011 (Dáil), five months after the General Election. The Joint Committee on EU Affairs of the 32nd Dáil period held its first meeting on 8 September 2016, seven months after the 26 February Dáil elections, four and a half months after the 24 April Seanad elections and four months after the May 2016 formation of a government. The setting up of Joint

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Committees must await the outcome of Seanad elections, but the delays nonetheless seem extraordinary. 183 During this period, eleven of the twenty-​four reports produced by the Committee in the entire period of January 2015 to January 2016 (i.e., 46% of the total), were signed. 184 A lack of system was also seen in the sometimes puzzling numbering of Committee reports. Sometimes reports were numbered, sometimes not. Sometimes, reports were incorrectly numbered: thus, e.g., in 2009 there were two “seventh reports”: Seventh Report: The Lisbon Treaty & Workers’ Rights (September 2009) and Seventh Report: Report on the Joint Committee’s Contribution to the European Commission on its Annual Policy Strategy 2010 (July 2009). 185 E.g., the July 2003 Report on the Proposal to Display the European Flag for the Duration of Ireland’s Presidency of the European Union. 186 See e.g., the Report on a Motion regarding the Situation in Gaza, January 2009; Report (No. 6) on Motion re Middle East Peace Process (November 2004). 187 A lack of system is sometimes evident: unnumbered or undated reports were occasionally produced. E.g., the 2015 EU Scrutiny Work Programme (assumed in Table 5.6 to have been published in 2015) was undated. 188 So-​called reports on motions are a particularly strong example of this. See e.g., Joint Committee on European Affairs, Report on a Motion regarding the Loans to Ireland from the European Financial Stability Facility and the European Financial Stability Mechanism (December 2010). “Reports’ produced before the time of the 30th Dáil could be extraordinarily brief: Report (No. 9) on the Lisbon Strategy (Part 2): Strengthening the social dimension March 2005 was one page long. So was Report (No. 10) Statement: Human Rights in Zimbabwe March 2005 (on a subject which fell better within the remit of the Joint Oireachtas Committee on Foreign Affairs).The July 2003 Report on the proposal to display the European Flag for the duration of Ireland’s Presidency of the European Union was so brief that it is more accurately characterised as a resolution. 189 See list of reports by Joint Committees in the 31st Dáil period at www.oireachtas. ie/​parliament/​oireachtasbusiness/​committees_​list/​about/​committee-​reports/​ (accessed on 13 May 2017). 190 These Sub-​Committees were also sub-​committees of the Joint Oireachtas Committee on European Scrutiny. 191 Senator Donohue was also the rapporteur for the Joint Committee’s report, Sovereign Wealth Funds  –​European Union Policy, Implications and Recommendations for Ireland (16 July 2009). 192 Somewhat remarkably, without providing any financial or personnel support of any kind. 193 Including former Taoiseach Garret FitzGerald. 194 Authored by five academics from the UCD Dublin European Institute, including the present writer. 195 This report was published on the Sub-​Committee’s website with its own report. See www.oireachtas.ie/​viewdoc.asp?DocID=10119 (accessed on 13 May 2017). 196 Meaning the Government Minister performing functions in relation to the measure or, if there is more than one, whichever of them may be agreed by them. (S. 1(1) of the 2002 Act.)

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197 See s. 2(3) thereof. Where, pursuant to s. 2(3), a text of a proposed measure has not been laid before each House and the measure concerned is adopted by an EU institution, the Minister must cause a copy of it to be laid before both Houses with a statement outlining its implications for Ireland, the circumstances of its adoption and including such other information as the Minister considers appropriate. (S. 2(4) of the 2002 Act.) 198 At present, information notes are submitted to the Oireachtas EU Secretariat Unit in the form of Word computer files and are in addition formally laid before the Oireachtas (and thus provided to the Oireachtas Library and Information Service) in the from of PDF computer files. 199 See Houses of the Oireachtas, Fact Sheet 3: The Role and Work of Oireachtas Committees Relative to EU Affairs (December 2014) at 2. 200 In October 2007. 201 According to the Joint Committee itself, it was set up “in recognition of the growing importance of EU legislation”. (See the “Notes for Information” contained in Joint Committee on European Scrutiny, Report on Documents considered at 73rd Meeting on 2 December 2010.) Interviews conducted by this writer indicated that the political need to have sufficient chairmanships of committees to allocate at the outset of the 30th Dáil played at least as significant a role however. 202 The Oireachtas website formerly set out this process in some detail, but with the demise of the Scrutiny Committee, the relevant pages have been removed. 203 See Joint Committee on European Scrutiny, Eighth Annual Report on the Operation of the European Union (Scrutiny) Act 2002 (Dublin, January 2011), para. 7. (In 2009, the number was 440 documents.) 204 Respectively 69, 67 and 63 information notes. 205 Viz., 47 information notes. The Departments of Education and Skills (22), Transport (18), Environment, Heritage and Local Government (11), Health and Children (9), the Taoiseach (6), Communications, Energy and Natural Resources (4) and the Revenue Commissioners (2  –​ semble this should more properly have been attributed to the Department of Finance) came next, followed by the Department of Tourism, Culture and Sport (1 –​attributed in the Joint Committee’s statistics to “Art”, which fell within the remit of this Department). 206 Because of the mainstreaming of scrutiny, information notes are now provided to a range of Oireachtas Committees, unlike in the 30th Dáil period. 207 Article 24 TFEU. 208 Ibid., para. 14. 209 Ibid. See Appendix 4 thereof. 210 John Perry TD speaking in Joint Oireachtas Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs, 5 May 2010. 211 Joint Report on Implementation of the Lisbon Treaty: Interim arrangements on the enhanced role of the Houses of the Oireachtas (8 December 2009). 212 See Report of the Joint Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs. 213 See Order 1(b)(iv) both of Dáil Éireann Order of 23 October 2007, and Seanad Éireann Order of 24 October 2007.

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214 The Secretary General of the Department of Agriculture, Fisheries and Food appeared before the Committee on 13 January 2011. 215 The Secretary General of the Department of Justice, Equality and Law Reform appeared before the Committee on 20 April 2010. 216 On 26 May 2009, when the Secretary General of the Department of the Environment, Heritage and Local Government appeared before the Committee and on 1 December 2009, when the Secretary General of the Department of Foreign Affairs came before the Committee. 217 See Order 1(b)(iii) of its Orders of Reference (viz., the Order of Dáil Éireann of 23 October 2007, the Order of Seanad Éireann of 24 October 2007). 218 When Minister of State at the Department of Agriculture, Food and Fisheries, Tony Killeen TD, appeared before the Committee. 219 In 2009, these were by (i)  the Federation of Irish Fishermen; (ii) Financial Services Ireland;(iii) the Irish Banking Federation; (iv) the Irish Funds Industry Association; and (v) the Irish Stock Exchange. In 2010 (vi) the Consumers’ Association of Ireland; (vii) the Irish Banking Federation; and (viii) Bio Tech appeared before the Scrutiny Committee. 220 In 2009, these were by (i) the Central Bank and Financial Services Authority of Ireland; and (ii) the Financial Regulator. In 2010 (iii) the Central Bank; (iv) the Environmental Protection Agency and (v)  Leitrim County Council appeared before the Scrutiny Committee. 221 In 2009 (i) the Irish delegation to the Committee of the Regions appeared before the Committee, and in 2010 (ii) the European Commission Representation in Ireland; and (iii) the Permanent Representative of the Oireachtas to the EU (Mr John Hamilton). 222 Only two annual reports are available in respect of particular years in the 30th Dáil period –​in respect of 2009 and 2010, respectively. Earlier reports are in respect of lengthier periods, and the statistics quoted therein thus less useful for comparative purposes. 223 Only the Oireachtas Committee on Climate Change and Energy Security and the Committee on Justice, Defence and Women’s Rights had a worse record. See European Movement Ireland, Accountability Report 2010 (Dublin, July 2011), 43. 224 Joint Committee on Climate Change and Energy Security, Report No. 1 COM (2008) 16, COM (2008) 17, COM (2008): Scrutiny Report on three proposals relating to the implementation of the EU Climate-​Energy legislative package (October 2008). 225 See e.g., the June 2006 Joint Committee on Communications, Marine and Natural Resources Report: EU Scrutiny of COM (2005) 646 Proposal for a Directive of the European Parliament and of the Council amending Council Directive 89/​552/​EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. 226 EU Scrutiny Report No. 2: COM (2003)796. Proposal for a decision of the European Parliament on a Single Framework for the Transparency of Qualifications and Competences (EUROPASS). 227 Joint Committee on European Scrutiny, Eighth Annual Report on the Operation of the European Union (Scrutiny) Act 2002 at para. 7. In total the Scrutiny Committee considered 441 documents in this time. (Ibid.)

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228 Perhaps considerably less, since an (unspecified) number of proposals were sent on to more than one sectoral committee, and thus this figure of ten proposals involves double counting (at least) of any proposal sent to more than one committee by the Scrutiny Committee. 229 See Joint Committee on Justice, Defence and Women’s Rights, Annual Report 2010 at 10. 230 Respectively, the November 2010 Fourth Report:  Report on Reform of the Common Agricultural Policy Post-​2013 and the July 2010 Report by two Oireachtas Committees on the European Commission’s Green Paper on Protecting Europe’s Forests against Climate Change. 231 Joint Committee on Communications, Energy and Natural Resources, EU Scrutiny Report No. 1: COM(2009)363 –​Scrutiny Report on proposal relating to the security of gas supply (May 2010). 232 Viz., the four reports produced by the Joint Oireachtas Committee on European Scrutiny itself and the single report produced by the Joint Committee on Communications, Energy and Natural Resources. 233 See Joint Committee on European Scrutiny, Eighth Annual Report on the Operation of the European Union (Scrutiny) Act 2002 at Appendix 10 thereto. 234 Report by two Oireachtas Committees on the European Commission’s Green Paper on Protecting Europe’s Forests against Climate Change. 235 See the chairpersons’ foreword to the report. Surprisingly, there is no evidence of the Report having been forwarded to the very institution that should have been the first to receive it, if the objective had been to maximise its influence –​the European Commission itself. 236 EPS Consulting, whose contribution is expressly acknowledged in the report. 237 Both the report itself and the Commission reply to it (dated 12 May 2011)  are to be found at http://​ec.europa.eu/​dgs/​secretariat_​general/​relations/​relations_​other/​ npo/​ireland/​unsolicited_​en.htm 238 Provided by a Mr Bart Brady, whose contribution is expressly acknowledged in the report. 239 Excluding, of course, the Joint Oireachtas Committee on European Affairs and the Joint Oireachtas Committee on European Scrutiny. 240 Joint Committee on Enterprise, Trade and Innovation, Annual Report 2010–​2011 and Work Programme 2011 (February 2011), p.  10. Indeed, this arguably overstates the presence of European issues, since it was the same issue which featured twice in the Joint Committee debates, viz., the European Globalisation Fund, and its funding and functioning. 241 Ibid. at 24. 242 See Government for National Recovery 2011–​2016 at 25. 243 See European Commission press release, Better Regulation Agenda: Questions & Answers, Strasbourg, 19 May 2015. 244 See corresponding remarks by Dominic Hannigan TD, Joint Committee on EU Affairs Chairperson, in his introduction to Ninth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 5. 245 See Table 5.10 above.

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246 Figures extracted by author from Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 8. 247 Many were not legislative measures:  they included budget documents, CFSP measures, Commission reports, communications, decisions, early warning notes and green papers. 248 Author’s own calculation. The final meeting before the 25 February 2011 election was the 3072nd (Transport) Council. The first meeting after the 24 May 2007 election was the 2803rd (Employment) Council. 249 Dermot Ahern TD (Minister for Justice, Equality and Law Reform) briefed the Committee on a forthcoming Council meeting on 24 February 2009, as did Conor Lenihan TD (Minister of State at the Department of Justice, Equality and Law Reform) on 1 April 2009.There seem not to have been other ministerial briefings during the 30th Dáil, although briefings on opt-​in motions under Article 29.4.7° of the Constitution (discussed in at note 97 in thus chapter) sometimes served a similar function. On 25 November 2009, Minister Ahern, on the occasion of such a briefing, observed: this is no different from any other proposal that comes to this committee under a motion that is required under Article 29 of our Constitution, that is, to opt in or opt out. That is the case and has been the case for many years —​as long as I have been coming to this committee  —​in that the prior approval of the Oireachtas has to be obtained before Ireland can give its assent at a European Council meeting…

250 This figure excludes the extraordinary Council meetings held on 18 January, 30 April, 10 September and 10 November and disregards the fact that the 3044th meeting of the Council took place on two separate dates (11 and 15 November). 251 See T. Raunio, National Parliaments and European Integration –​What We Know and What We Should Know (Arena Working Paper No. 02, Centre for European Studies, University of Oslo, January 2009)  above, 4; T.  Raunio, “Ensuring Democratic Control over National Governments in European Affairs” in Barrett (ed.), National Parliaments and the European Union, 3 at 9; T. Raunio, “The Parliament of Finland: A Model Case for Effective Scrutiny?” in A. Maurer and W. Wessels (eds.), National Parliaments on Their Ways to Europe: Losers or Latecomers? (Nomos, Baden-​Baden, 2001); and more generally I. Mattson and K. Strøm, “Parliamentary Committees” in H. Döring (ed.) Parliaments and Majority Rule in Western Europe (Campus and St. Martin’s Press, Frankfurt and New York, 1995). 252 See Government for National Recovery 2011–​2016 at 25. 253 Joint Committee on EU Affairs, Thirteenth Annual Report on the Operation of the European Union Scrutiny Act 2002 at 9. 254 The Annual Report figures have been verified by the author against the online record of all 2015 Joint Committee debates. 255 Beginning with the Foreign Affairs Council on 19 January 2015 and ending with the Environmental Council on 16 December 2015. 256 European Movement Ireland, Accountability Report 2015 indicates that pre-​Council and post-​Council attendance by Ministers at Oireachtas Committees during 2015 stood at 42% (having risen to 51% the previous year). However, such figures (i)  include

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both pre-​Council and post-​Council briefings (ii) include appearances of Departmental representatives rather than ministers (iii) count as a briefing any meeting taking place within a twelve-​week range (i.e., six weeks before to six weeks after), and (iv) count as briefings meetings not listed as such in the agenda and involving discussion of other subjects in addition to the Council meeting concerned. (See p. 7 of the 2015 Accountability Report.) 257 See Communication from the Commission to the European Council, A Citizens’ Agenda Delivering Results For Europe (Brussels, 10.5.2006 COM(2006) 211 final). See Commission website on this dialogue at http://​ec.europa.eu/​dgs/​secretariat_​general/​relations/​relations_​other/​npo/​index_​en.htm 258 In 2007, the Oireachtas Joint Committee on European Affairs sent the Commission an Opinion on an Action Programme for Reducing Administrative Burdens in the EU (COM (2007)23) which the latter replied to in July 2007. 259 Not all states are bicameral. 260 See generally Annexes to European Commission, Annual Report 2015 on relations between the European Commission and national Parliaments, Annex I (Brussels, 15.7.2016 COM(2016) 471 final). 261 In 2006–​09, COSAC conducted seven subsidiarity checks in which national parliaments offered opinions on whether particular measures complied with subsidiarity. (An earlier check conducted before the Barroso initiative was put in place has been disregarded here.) (See L. Raulinaityté, “Control of Subsidiarity by National Parliaments Coordinated at the EU Level”, paper delivered at Subsidiarity Check –​Practical Application of the Subsidiarity Principle, Europäische Rechtsakademie Trier, 9–​10 June 2011.)) Thus up to seven of seventeen Oireachtas opinions sent to the Commission between 2006 and 2010 were really opinions on subsidiarity compliance rather than contributions to the process of political dialogue. The possibly incomplete “National Parliament Opinions and Commission Replies” website of the Commission (http://​ec.europa. eu/​dgs/​secretariat_​general/​relations/​relations_​other/​npo/​index_​en.htm) acknowledges only three Oireachtas opinions having been sent to it in 2008 (all by the Joint Committee on European Affairs except one reasoned opinion on subsidiarity sent by the Joint Committee on European Scrutiny), five in 2009 (all sent by the Joint Committee on European Affairs except one reasoned opinion on subsidiarity sent by the Joint Committee on European Scrutiny) and one in 2010 (sent by the Joint Committee on Agriculture, Fisheries and Food). The Commission’s own reply to at least one other opinion sent in 2008 by the Joint Oireachtas Committee on European Affairs was made available on the latter’s website (since deleted). 262 Which made four contributions in 2014, then two sole contributions and one joint contribution (with the Jobs, Enterprise and Innovation Committee and the EU Affairs Committee) in 2015. 263 Which made two contributions in 2014, then four sole contributions and one joint contribution (with the Agriculture, Food and the Marine Committee and the Jobs, Enterprise and Innovation Committee) in 2015. 264 Which made two contributions in 2014, then one joint contribution (with the Agriculture, Food and the Marine Committee and the EU Affairs Committee) in 2015.

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265 Known as the Joint Committee on Justice, Equality, Defence and Women’s Rights in the 30th Dáil period. 266 Excluding for these purposes the Joint Oireachtas Committee on European Affairs and the Joint Oireachtas Committee on European Scrutiny. 267 A proposal for a Regulation of the European Parliament and of the Council repealing certain acts in the field of police cooperation and judicial cooperation in criminal matters. 268 This happened three times in 2015:  the Committee stages of the Criminal Justice (Terrorist Offences) (Amendment) Bill and the Criminal Justice (Mutual Assistance) (Amendment) Bill (both of which implemented EU measures) and the 30 September discussion and approval of a motion that Dáil Éireann approve Ireland’s accession to a memorandum of understanding concerning the establishment and operation of a battle group. 269 Houses of the Oireachtas Commission, Annual Report 2015. See in particular, the Comparative Benchmarking Report therein at 24. 270 The main focus of the present discussion. The Seanad is dealt with elsewhere in this chapter. 271 Like that governing Oireachtas committees. 272 This is supplemented by the Salient Rulings of the Chair, providing a set of precedents for the Ceann Comhairle in the Dáil and the Cathaoirleach in the Seanad. (See generally R. Caffrey, “Procedure in the Dáil”, Chapter 13 of M. McCarthaigh and M. Manning, The Houses of the Oireachtas at 257.) 273 See Caffrey, “Procedure in the Dáil” at 258–​259. 274 Ibid. at 260. 275 Ibid. 276 E. O’Halpin, “Irish Parliamentary Culture and the European Union:  Formalities to be Observed” in P. Norton, National Parliaments and the European Union (Frank Cass, London, 1996), 124 at 125. 277 See Houses of the Oireachtas Commission, Annual Report 2015 at 24. 278 See Caffrey, “Procedure in the Dáil” at 263. 279 European Movement Ireland, Accountability Report 2015 at 5.  Note however that in the European Parliament, a limit has now been put on the number of questions which MEPs can submit each month. 280 Gallagher, “The Oireachtas” at 217. 281 See generally, Caffrey, “Procedure in the Dáil” at 262–​264. 282 Governed by Standing Order 36. In the 30th Dáil questions to the Taoiseach were put on Tuesdays and Wednesdays for forty-​five minutes. 283 See Vol. 720 Dáil Debates c. 844 (3 November 2010). 284 See Vol. 701 Dáil Debates c. 64 (3 February 2010). Analogously, in a question for written answer, Deputy Ciarán Lynch sought and obtained from the Minister for the Environment, Heritage and Local Government, detailed information on the cases then being taken by the European Commission against Ireland for failure to transpose or implement EU environmental law directives. (See Vol. 699 Dáil Debates c. 64 (21 January 2010)).

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285 See Standing Order 27. 286 In this case, the only kind of accountability to the Oireachtas made possible by the Irish political system. 287 See Vol. 708 Dáil Debates c. 465 (11 May 2010). 288 Of the 44,494 questions processed in 2009, only 95 of them were private notice questions. (See Caffrey, “Procedure in the Dáil”). 289 See e.g., Vol. 403 Dáil Debates c. 1201 (5 December 1990) where Bernard Allen TD raised concerns over the conduct of GATT negotiations by the European Commission as a private notice question. 290 See Vol. 723 Dáil Debates c. 670 (1 December 2010). 291 See Vol. 711 Dáil Debates c. 830 (9 June 2010). 292 See Vol. 723 Dáil Debates (2 December 2010). 293 See Vol. 717 Dáil Debates (30 September 2010). 294 See generally on the topic of debates, Caffrey, “Procedure in the Dáil” at 268. 295 E.g., an amendment proposed regarding a proposed motion on the Seanad order paper on 15 December 2010 commended the Government “for its management of the economy which means that Ireland has emerged from recession with the strongest GDP growth rate of the euro area in the first quarter of this year”. Opinions might legitimately differ on whether such a comparative reference to Eurozone states is an instance of EU matters featuring in Oireachtas debates. 296 Unpublished research by European Movement Ireland for the purposes of its Accountability Report 2010. I am grateful to Andrea Pappin and Noelle O’Connell for having brought it to my attention. 297 Ibid. 298 Presumably meaning motions not fitting into the other categories listed in the text e.g., ad hoc motions on current political issues or motions of no confidence in the Government (see more generally, Gallagher, “The Oireachtas” at 215–​216) or motions to note a Committee report (which might be European-​related) Thus the Seanad order paper for 15 December 2010 referred to a motion to note the Creighton Sub-​Committee Report, copies of which had been laid before the Seanad five months earlier. 299 See more generally Caffrey, “Procedure in the Dáil” at 269. 300 Ibid. Debates on requests to move adjournments (six occasions), on private members’ business (three occasions), on referrals to Joint Committees (two occasions) and on adjournment matters (once) reportedly provided the remaining occasions when the Dáil debated European issues in 2010. An example of private members’ time being used for a European-​related purpose was the motion (listed in Seanad Order of Business, 15 December 2011) moved by all Fianna Fáil Senators that “Seanad Éireann supports the Government in their endeavours to improve fish quotas for Irish fishermen in the light of the annual reviews due this week; and supports the minister and government in their negotiations in the review of the Common Fisheries Policy. 301 Vol. 700 Dáil Debates c. 581 (28 January 2010). 302 See H. McGee, “Chief Whip Admits Government Performance on Dáil Reforms Deplorable”, Irish Times, 10 June 2013.

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303 Vol. 868 Dáil Debates (19 February 2015). 304 See H. McGee,”Chief Whip Admits Government Performance on Dáil Reforms Deplorable”, Irish Times, 10 June 2013. 305 See para. (iii) thereof. 306 Vol. 712 Dáil Debates c. 636 (17 June 2010). 307 Caffrey, “Procedure in the Dáil” at 271. 308 See Laffan, “The Parliament of Ireland” at 256. 309 European Movement Ireland, Accountability Report 2010 at 47. 310 Government for National Recovery 2011–​2016 at 26. 311 Standing Order 102A, the contents of which have now been re-​enacted in Standing Order 111. See 802 Dáil Debates at 47–​48 (7 May 2013). 312 The five panels are the Agriculture, Culture and Education, Industry and Commerce, Labour and Public Administration panels. 313 Comprising members of Dáil Éireann, the outgoing Seanad and county, urban and city councillors (under the Seanad Electoral (Panel Members) Acts 1947 and 1954). 314 M. Manning, “The Senate” in MacCarthaigh and Manning, The Houses of the Oireachtas at 153. 315 See Houses of the Oireachtas Commission, Annual Report 2015 (2016) at 18. 316 Manning, “The Senate” at 153. 317 In a total poll of 1,240729 votes (a 39.2% turnout), 591,937 (48.3%) voted for abolition and 634,437 (51.7%) voted for retention. 318 Source: interviews by writer with Oireachtas staff. 319 And who returns there when finished his period in Brussels. 320 This is circulated to members of the European affairs committees, committee clerks, and the chairs of both Houses. 321 See generally, Joint Oireachtas Committee on European Affairs, Report on Europe Day in Dáil Éireann (10 May 2006) (Twelfth Report). See also Joint Committee on European Affairs, Bringing The European Union and the Citizen Closer Together –​Reflections on Europe Day in Dáil Éireann (10 May 2006). 322 See comment in G.  Barrett, “We Can’t Turn Our Back on EU”, Sunday Business Post, 22 May 2011. 323 Mr Joe Costello TD. The fact that Seanad elections had taken place only some days earlier precluded the possibility of an Oireachtas Committee being set up. 324 Then Lucinda Creighton TD. 325 See Government for National Recovery 2011–​2016 at 24. 326 Ibid., 25. 327 See now Standing Order 111, esp. paragraph 3 thereof.

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6 Looking to the future: reflections on how the role of the Irish parliament in European affairs might be improved

Introduction The question of why national parliaments should be acquiring an increased role in EU policy matters was examined in Chapter 2. This chapter focuses on the particular case of the Oireachtas and considers what improvements could be effected in its EU-​related role. Ireland’s EU membership has given rise to many challenges for the Oireachtas.1 It is not unique among parliaments in this.2 However, Ireland’s position as a “slow adaptor” to European integration3 has meant that the Oireachtas has had more ground to make up than many other legislatures.

Oireachtas consideration of its European vocation The Oireachtas has considered its role in EU matters on several occasions in recent years, producing two Oireachtas sub-​committee reports and one Joint Committee report. The Oireachtas Sub-​Committee on Ireland’s Future in the EU (chaired by Senator Paschal Donohue) produced its report Ireland’s Future in the European Union: Challenges, Issues and Options4 in November 2008. Its fourth chapter was entitled “Enhancing the Role of the Oireachtas in EU Affairs”. A second Oireachtas Sub-​Committee, chaired by then-​Opposition TD Lucinda Creighton produced the Report of the Joint Sub-​Committee on the Review of the Role

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of the Oireachtas in European Affairs5 (entirely concerned with the Oireachtas’ EU-​ related role) in July 2010. Both reports derived from the Lisbon Treaty’s ratification debate. The political impact of this Treaty for the Oireachtas thus rivalled its direct legal consequences. As Jacobs has observed “in the longer run… the significance of the Lisbon Treaty for national parliaments is likely to lie less in any new formal powers and more in the stimulus it could provide for greater national parliament involvement in… European Union decision-​making…”.6 Over time, several Committee/​Sub-​Committee recommendations have been implemented. Many, however, remain untried. Both reports merit examination. So too does the April 2014 Report of the Joint Committee on European Affairs, Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs, which added some new ideas of its own.

Report of the Sub-​Committee on Ireland’s Future in the European Union Following the referendum rejection of the Twenty-​eighth Amendment of the Constitution Bill 2008, designed to facilitate ratification of the Lisbon Treaty,7 the Sub-​Committee on Ireland’s Future in the EU was established as a Sub-​ Committee of both the Joint Oireachtas Committee on European Affairs and the Joint Oireachtas Committee on European Scrutiny. Chaired by opposition Senator Paschal Donohoe, its purpose was considering the referendum results’ implications, the challenges facing Ireland in the EU, and Ireland’s future in the Union. The Sub-​Committee’s Orders of Reference set out four specific objectives (one of which was “to make recommendations to enhance the role of the Houses of the Oireachtas in EU affairs”). The Sub-​Committee duly divided its work into four modules. The first was “the role of the Oireachtas in EU affairs”. The Sub-​ Committee’s modus operandi was that these modules were addressed through gathering evidence from invited speakers, inviting submissions from the public and commissioning a discussion paper from academic experts. All the Sub-​Committee’s hearings were held in public in the interests of openness and in an effort to encourage a full and frank public debate on Ireland’s future in the EU. Over the eight weeks of its work, the Sub-​Committee spoke to 114 people and organisations, consisting of practitioners, experts, academics and commentators representing a broad range of opinion, and received 94 submissions from the public. On the basis of the contributions from invited speakers and the submissions from the public and from UCD’s Dublin European Institute, the Sub-​Committee has agreed this report.8

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The Sub-​Committee Report was presented on 27 November 2008. Its four chapters corresponded closely to the modules. Chapter Four was entitled “Enhancing the Role of the Oireachtas in EU Affairs”. The Sub-​Committee identified four “specific weaknesses in the way the Oireachtas can hold the government to account for its role in EU law making”:  (i) the lack of Oireachtas influence in the EU decision-​making process; (ii) procedures giving effect to EU law in Ireland; (iii) the way EU business is handled in the Oireachtas; and (iv) sensitive policy areas, including workers’ rights and socio-​ethical issues.9 Regarding (i) lack of Oireachtas influence in EU decision-​making, the Sub-​ Committee noted the Oireachtas scrutinised EU proposals only after these were formally published by the EU. The Sub-​Committee criticised this as reactive, and lacking in any mechanism to enable Oireachtas influence on EU proposals content.10 Insofar as concerned (ii) giving effect to EU laws, the Sub-​Committee observed the Irish transposition of some EU laws had been controversial (e.g., the Habitats Directive, the creation of criminal sanctions for fishery offences, restrictions on turf-​cutting, and school water charges). It observed that representative groups, including the farming sector, had outlined their concerns about the regular use of secondary legislation for far-​reaching transposition purposes. It noted concerns about a lack of political and democratic oversight to prevent unnecessary red tape.11 It also expressed concern about “a perception that Ireland implements or enforces its EU obligations more rigorously than some other Member States”.12 and “the low rate of compliance with existing guidelines” on best practice in transposing directives.13 As regards (iii) the way EU business was handled in the Oireachtas, the Sub-​ Committee observed: scrutiny of EU proposals does not feature prominently in the overall work of the Oireachtas. There is a lack of debates in Dáil and Seanad Éireann on EU-​related business. National and local issues dominate in parliament, which in turn impacts on what is subsequently reported by the media. There is also an over-​reliance on the Committees within the Oireachtas to deal with EU-​related matters. The media’s coverage of Oireachtas Committees is very limited which reinforces the existing information deficit. There are also practical constraints on Oireachtas Members. Members have to juggle a range of competing demands for their attention. Multi-​seat constituencies and the demands of constituents for “their” TDs to be seen locally can act as disincentives to active committee participation. Local politics matters more to most Irish people than any well meaning discussions on how to improve the institutional structure of the EU.

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In addition, parliaments in Member States are in an unequal relationship with governments who have vastly superior access to legal, administrative and specialist services. Given the range of issues and volume of information pertaining to EU matters, it is important that parliaments seek to prioritise issues which they believe are of most importance to the people they represent.14

In relation to (iv), sensitive policy areas, the Sub-​Committee opined that there was “a particular need to ensure effective parliamentary oversight of any proposed EU actions impacting upon sensitive national issues”. It instanced taxation laws, justice measures, workers’ rights, socio-​ethical issues and defence policy as examples,15 and recounted that specific concerns had been expressed to the Sub-​ Committee in relation to the protection of Irish military neutrality.16 The Sub-​Committee looked at systems used in other states to achieve executive accountability in the field of EU law, hearing from witnesses concerning the British, Danish and German parliaments. It considered briefly the relative merits of a Danish-​style mandate system and a UK-​style scrutiny reserve system, coming down in favour of the latter. According to the Sub-​Committee, a mandate system would not be easily aligned with the Irish political system of majority government. The electoral system in Ireland has meant that majority governments have become the norm. This has led to the development of a strong executive which enjoys a majority in the Oireachtas. There is, therefore, less incentive for the Government to seek the approval of the Oireachtas in areas in which it has the power to decide under the constitution, such as policies at the EU level. If a mandate system was to be introduced, it would in practice have little effect as the Government would always secure its preferred mandate given that it has a majority in the Oireachtas. The Chairman of the Scrutiny Committee in the UK House of Commons told the Sub-​Committee that the scrutiny reserve has worked well for them. It is provided for by parliamentary resolutions rather than legislation. The Irish system has similar features to the UK and the Sub-​Committee notes that a 2005 Committee Report concluded that a mandate system was not suitable for the UK. Realistically it may be difficult to introduce a mandating system in Ireland, given that the constitutional responsibility for external policy is vested in the government.17

This is arguably the least convincing section of the Sub-​Committee’s Report. It is eminently arguable that the process of dialogue used in obtaining a mandate from the Oireachtas would be of public benefit even if a Government could ultimately use its majority to get its way. (It has not been suggested that the need for parliamentary approval regarding domestic legislation is superfluous merely because a Government can use its majority to get its way.) Nor is the argument of Constitutional difficulties self-​evident, and with cross-​party support, a

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Constitutional amendment (if actually needed), would probably be attainable, particularly in the context of a referendum on a European Treaty. Despite the rather unsatisfactory nature of the reasoning, and the over-​emphasis placed on the UK approach, the recommendation favouring a scrutiny reserve was clearly broadly supported by the Sub-​Committee membership (and later echoed by the Creighton Sub-​Committee). Such a system would very arguably be better than what exists at present.18 To combat the lack of influence of the Oireachtas in the EU decision-​making process, the Sub-​Committee made four recommendations. First, that “a formal scrutiny reserve mechanism, in line with the model used in the UK Parliament, should be introduced”.19 The Sub-​Committee claimed this would “provide more influence for the Oireachtas in the negotiating positions adopted by Irish Ministers on draft EU legislation at Council meetings”. It added however that the legal, resourcing, and logistical implications needed to be examined further.20 Secondly, the Sub-​Committee recommended that national parliaments be consulted formally “about the European Commission’s annual policy strategy and legislative work programmes” before these were finalised.21 Thirdly, the Sub-​Committee suggested that there should be a more structured arrangement for Oireachtas Committees to meet with Ministers before Council meetings to consider the Government’s negotiating positions on agenda items. Ministers should also report back in writing to the appropriate Oireachtas Committee on the outcome of the discussions and on specific decisions made.22

This recommendation, although targeted in the 31st Dáil as regards ex ante meetings, was never properly implemented. Fourthly, the Sub-​Committee suggested (sensibly) there should be more focus by Oireachtas committees on non-​legislative documents from EU institutions.23 It also proposed the Oireachtas Working Group of Committee Chairs should report on mainstreaming EU matters across all Oireachtas committees. The mainstreaming issue was later taken up by the Creighton Sub-​Committee. Under the rubric of giving EU laws effect, the Donohue Sub-​Committee argued concerns about how Directives were transposed demanded more robust arrangements for overseeing statutory instruments.24 It recommended regulatory impact assessments be forwarded by Government to the Oireachtas when significant EU laws were being considered,25 and that if statutory instruments were used to implement an EU law, the text, or at least the heads of the instrument, should be circulated to all Oireachtas members to bring more transparency and enable Oireachtas members to highlight potential problems at an early stage.26

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The Sub-​Committee addressed more difficult ground in considering how EU business is handled in the Oireachtas, noting: it is widely acknowledged that the current political system in Ireland focuses Members on local issues to the detriment of their national role as legislators. The Oireachtas must encourage members to take a far greater role in EU affairs. Members should be able to specialise and develop expertise in EU affairs. This needs a change in the political culture in Ireland… We need to find ways to bring our membership of the EU into national politics.27

The Sub-​Committee recommended three changes. First, a new panel should be constituted in the Seanad with at least five senators being nominated on the basis of experience in EU affairs. The idea was that senators elected from this panel would participate in Oireachtas EU committees, and build relations with Irish MEPs and EU institutions. Secondly, Dáil and Seanad Standing Orders and procedures should be amended to ensure e.g., regular debates on EU legislative proposals and developments (unspecified) enhanced powers for Oireachtas Committees; provision for participation by MEPs in some debates; and informal monthly meetings between Irish MEPs and Oireachtas EU committees.28 Finally, as part of an improved communication strategy, the Oireachtas should establish its own EU Information Office, providing “easy access to neutral information on the EU decision making process, and Ireland’s role therein”.29 The final rubric for recommendations was that of “sensitive policy areas”. Here the Sub-​Committee argued: the current requirement in the triple lock for approval by a simple majority in Dáil Éireann should be strengthened. Dáil Éireann should be required to have a “super majority”, where a two thirds majority is needed for any proposal to send Irish troops overseas on peacekeeping missions.This would provide a stronger parliamentary mandate for such decisions and enhance the role of the Oireachtas in a key area of interest to the Irish people.30

The underlying idea here was that the Dáil approval should reflect not only the will of Government supporters, but also Opposition members.31 The Sub-​Committee (which was cross-​party in nature) made several valuable recommendations, drawing its conclusions after a fairly extensive process of consultation. Some recommendations, particularly those relating to mainstreaming, pre-​Council meetings with ministers and the possibility of more plenary debates on EU matters, were indicative of improvements later attained or targeted during the 31st Dáil. Nonetheless, further reflection on the Oireachtas EU role was soon felt to be required.

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Report of the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs Subsequent to the Donohue Sub-​Committee Report and the Lisbon Treaty’s subsequent entry into force, the Joint Committee on European Affairs and the Joint Committee on European Scrutiny together agreed to establish a Joint Sub-​ Committee on the Review of the Role of the Oireachtas in European Affairs, chaired by then Fine Gael TD Lucinda Creighton. The driving force was the Lisbon Treaty, both directly (because of the Lisbon Treaty’s implications for parliaments) and indirectly (because of the political ramifications of the initial referendum June 2008 rejection concerning the Lisbon Treaty). The Sub-​Committee’s Terms of Reference noted: the Lisbon Treaty changes the relationship between the EU and the national parliaments of the Member States and for the first time, the Treaties formally recognise that national parliaments have a key role to play in the good functioning of the EU. This will have an effect on how the Houses of the Oireachtas conduct their business in relation to EU matters and will also impact on the cooperation between the Houses of the Oireachtas and the national parliaments of the 26 other EU Member States. In addition, and beyond the implementation of the Lisbon Treaty provisions, the Joint Committees recognise that the role of the Houses of the Oireachtas in EU affairs needs to be improved; a matter considered by the Sub-​Committee on Ireland’s Future in the European Union…

The Sub-​Committee’s membership consisted of ten members of both Houses (six TDs and four Senators) evenly split between Government and Opposition supporters. It heard from eleven expert witnesses during public hearings held on five occasions in April and May 2010,32 and received eight submissions, varying considerably in their length and quality. Four of these came from Fianna Fáil, Fine Gael, the Labour Party and the Green Party (position papers having been sought by the Sub-​Committee from each of the Oireachtas political parties), and three of the remaining four were submitted by politicians,33 the remaining submission coming from the Head of the European Parliament office in Dublin.34 The Sub-​Committee was to consider both (a) the interim arrangements in the Houses implementing the new powers for national parliaments under the Lisbon Treaty35 and (b) the future role of the Oireachtas in EU Affairs, then report to the Joint Committees within a period of slightly less than six months.36 The Joint Committees ultimately agreed at a joint meeting on 7 July 2010 that the unamended Sub-​Committee Report be laid before both Houses of the Oireachtas, and published on the Oireachtas website.

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Six broad “modules” encapsulating broad themes for consideration were set out in the Sub-​Committee’s terms of reference. The Sub-​Committee took a fairly liberal approach to these modules, however, expanding on them in its Report and not adhering to the modules too exactly in the Report’s structure.37

The Sub-​Committee recommendations The Sub-​Committee produced twenty-​eight separate recommendations, focusing on (i) reviewing the interim arrangements already adopted to facilitate the Lisbon Treaty’s implementation; (ii) prioritising more important work within the EU-​related tasks carried out by the Oireachtas; (iii) early engagement in EU policy-​making; (iv) improving executive oversight; (v)  improving inter-​ parliamentary cooperation; (vi) “mainstreaming” EU work into the life of the Oireachtas generally; (vii) improving the transposition of EU directives; and (viii) improving the communication to the public of EU matters. A majority (fifteen) of the Sub-​Committee’s twenty-​eight recommendations focused on three areas (executive oversight, mainstreaming and transposition) where the Sub-​Committee seemed to feel the most changes were needed. It made six recommendations regarding executive oversight. Mainstreaming and impact issues each inspired five recommendations. (The topic of resources also attracted five unnumbered recommendations, indicating obvious concerns here too.) Recommendations varied in their significance. Some of the most far-​ reaching related to executive oversight. Criticisms are possible. First, the Sub-​Committee Report evinced little evidence of serious reflection or comparative study on how to optimise the functioning of the new powers given to the Oireachtas under the Lisbon Treaty and its associated Protocols, the consequent amendment of Article 29.4 of the Irish Constitution and the European Union Act 2009. Instead it simply rubberstamped the rather confused transitional arrangements which the Oireachtas had already been operating. Secondly, no thought seems to have been given in the Report to how the Oireachtas might exercise some kind of accountability function regarding vital areas of EU activity which do not give rise to legislation, e.g., the open method of coordination38 and European-​level social dialogue.39 One could also query the Sub-​Committee’s recommendations on so-​called “gold plating” of Irish implementing legislation without first having examined the dubious nature of claims that any such activity was being engaged in.40 The Sub-​Committee can also be criticised for having engaged only in a relatively limited consultation process compared with the Sub-​Committee on Ireland’s Future in the EU.41 On the other hand, it had only a limited period of time in which to operate, and could draw in any case on the evidence already given to the Sub-​Committee

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on Ireland’s Future in the EU, given the overlap in the membership of the two Sub-​Committees. As regards its output, it certainly produced the most comprehensive examination of this area by an Oireachtas body in recent times and many significant recommendations on nine broad topics. Review of interim arrangements

Three recommendations were made concerning the interim arrangements put in place in order to implement the Lisbon innovations regarding national parliaments. There was little innovation or comparative reflection, however. The Sub-​ Committee focused on the broader role of the Oireachtas in European affairs, not the implications of the Lisbon Treaty.42 The Sub-​Committee recommended that the then interim arrangements be placed on a permanent basis by amending Dáil and Seanad Standing Orders. It also recommended provision for annual review of these “permanent” arrangements –​thereby facilitating reform on an ongoing basis in the light of experience. This suggestion was not followed, however. The second recommendation was that the weekly report on EU documents should be laid before the Dáil and Seanad by the Leas-​Cheann Comhairle and the Leas-​Cathaoirleach, so as to emphasise the ownership by the House as a whole of the Lisbon Treaty powers rather than particular committees, and also published on the Oireachtas website. A third recommendation was that the Houses of the Oireachtas (Laying of Documents) Act 1966 should be amended so that documents could be laid electronically. The laying of documents electronically was duly introduced in 2012.43 Prioritisation

The Sub-​Committee made two recommendations on prioritisation. The first was that the system employed by the Joint Committee on European Scrutiny be changed so that legislative proposals received in accordance with the 2002 Act be divided into two lists: a list of proposals of limited significance and a list of proposals of greatest significance/​implications for Ireland. This seemed sensible, given the volumes of EU documentation arriving at the Oireachtas under Title I of Protocol No 1 and Article 4 of Protocol No 2. The programme for Government for the 31st Dáil, Government for National Recovery 2011–​2016, made no provision for any filtration system, however. Instead it committed to no more than ensuring that all EU documents are forwarded to the Oireachtas through the Ceann Comhairle and the Cathaoirleach. They will transmit them to the Oireachtas library and the relevant Committees. Every TD and Senator will be informed of the documents as they arrive, so that they can engage in EU matters that concern or interest them.44

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In the event, the urgency of this problem seems to have dissipated as an unintended effect of other reforms: the mainstreaming process introduced in the period of the 31st Dáil led to proposals being allocated to sectoral Committees (by an administrative process) thereby ending the earlier and less manageable situation of all proposals flooding through one Committee.45 In addition, Departmental information notes supplied by the Government have provided for a kind of filtering process by signalling –​via the amount of detail they provide, or more exactly, the lack thereof –​which proposals are of limited significance for Ireland.46 A second recommendation was that the European Union (Scrutiny) Act 2002 be amended so that each Government Department be obliged to prepare a six-​monthly report on developments in the EU, on the measures proposed and progressed in that period and on the main priorities for the coming six months (perhaps risking some repetition given that Departmental reports under the 2000 Act already include a forward-​looking element). In contrast the Sub-​Committee recommended ending the 2002 Act's requirement of an annual report, as such documents are largely historical.47 A subsequent 2014 report of the Joint Committee on EU Affairs recommended retaining the annual reports instead. Both reports may at least be said to have been united in seeking to end unnecessary duplication.48 Early engagement

Two recommendations were also made reflecting the need for early intervention to influence policy at European level.49 First, the European Commission’s Annual Policy Strategy should continue to be debated in the Joint Committee on European Affairs, but that in future, a report be prepared and laid in both Houses and debated in plenary session, with the Standing Orders being amended to require such a debate. Only after this plenary debate should the Joint Committee make its final contribution to the Commission.50 Secondly, the Joint Committee on European Scrutiny should continue to consider the Annual Legislative and Work Programme in detail. However, the Scrutiny Committee’s consideration should always include a presentation on the Legislative and Work Programme by a Commission representative. Furthermore, the Scrutiny Committee should prepare a report on the Programme which should be laid in the Houses and circulated to all sectoral committees for consideration.51 Better oversight

The Sub-​Committee made six recommendations concerning what it termed a national parliament’s “primary function of conducting oversight of government decisions and keeping Government ministers accountable in respect of EU matters”.

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The first was its recommendation (made in vain)52 that all Government Ministers be obliged, by way of an amendment to the EU Scrutiny Act, 2002 to attend the relevant sectoral committee before Council meetings in order to discuss the Council agenda and to report back to that committee on the outcome of the Council meeting53 –​a radical departure from the prevailing system whereby Ministers could be requested to appear before committees but in practice were rarely invited to do so before Council meetings (excepting the Minister for Foreign Affairs who frequently appeared in advance of General Affairs and External Relations Council meetings). Even the Minister for Foreign Affairs did not report back after the meeting however.54 Brendan Halligan, chairman of the Institute of International and European Affairs had told the Sub-​Committee: there are different views on how Ministers should be brought before… committees of the Oireachtas. I argue very strongly that, one way or another, every Minister who has attended a meeting of the Council of Ministers should be required to give an account orally thereof before a committee. I do not believe in written reports because they are primarily drafted by civil servants rather than politicians. For the sake of accountability, Ministers should be invited here in turn.55

Former Taoiseach John Bruton had spoken on ex ante briefings by Government Ministers: Why would Ministers want to come and consult a committee of the House before they attend Council of Ministers meetings? From my experience of attending meetings of the Council of Ministers… one is handed the brief as one gets on the aeroplane… An official may say “Minister, we could not give it to you earlier because we wanted to be absolutely up to date. We wanted to have the latest report from COREPER yesterday.” However, the first opportunity the Minister will have to read any of the material is when the brief is presented on the aeroplane. If a Minister was called before a committee the week before, the Minister would have to get the brief from the civil service. The Minister would then find that he or she had more influence on what was going to be done by the country than is the case at present when the brief is given to them aboard the plane… There [is] a commonality of interests between Ministers and the committee.56

Another Sub-​Committee recommendation was that statements and questioning occur in the Dáil prior to European Councils (a recommendation of particular importance given the pivotal role played by European Councils in resolving the EU’s economic crisis).57 This was speedily implemented after the election of the 31st Dáil in 2011. No amendment to the European Union Scrutiny Act 2002 underpinning pre-​Council ministerial appearances was adopted, however. Such

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appearances remain unsupported by any legal obligation and dependent on the commitment of individual Ministers.58 Thirdly, in a curious renvoi of the Sub-​Committee’s own responsibilities, it recommended the Government urgently formulate proposals concerning Oireachtas examination of Ireland’s Stability and Convergence Programme and budgetary framework before submission of these to Council and Commission for assessment.59 The fourth recommendation made by the Sub-​Committee was the highly significant one that the 2002 Act be amended to include a scrutiny reserve system. Scrutiny reserves and mandates were considered briefly above in examining the Donohue Sub-​Committee recommendations. Varying views had been expressed on both to the Creighton Sub-​Committee. Some witnesses favoured a mandate system.60 Others had opposed it.61 One witness had favoured a scrutiny reserve system.62 Foreign Minister Micheál Martin was opposed even to this.63 The Sub-​Committee’s subsequent recommendation of a scrutiny reserve system became the second such recommendation by an Oireachtas Sub-​Committee in less than two years. Endorsing in essence a UK-​style system, the Sub-​Committee also suggested qualifications or safeguards: (a) an “urgency” clause enabling a Minister to override a reserve but also requiring the Minister to justify doing so in writing, with the committee having the right to compel a Minister to appear before it if dissatisfied with the explanation provided; (b)  the automatic lapse of a reserve within a certain time, with the suggested suitable period being within eight weeks of receiving the information note from the Government;64 and (c) that a Memorandum of Understanding be agreed between the Oireachtas and Government on the operation of any such system.65 In the event, no such system was ever introduced; notwithstanding the fact that the Sub-​Committee Chairperson later became Minister of State for European Affairs, and was succeeded in this role by the former Chairperson of the Donohue Committee (which had made a similar recommendation). The Sub-​Committee’s final recommendation concerned the organisation of the Oireachtas committee structure. The Sub-​Committee recommended that in the next (31st) Dáil period, the Joint Committee on European Affairs and Joint Committee on European Scrutiny be amalgamated, forming a new standing Oireachtas committee with sub-​committees dealing with EU legislation (and transposition of Directives), an overall co-​ordinating role (including concerning sectoral committees) and the tasks of dealing both with EU institutional questions and with General Affairs and External Relations Council ministerial briefings.66 In the event, the Joint Committee on European Union Affairs was to have a far less substantial function and only a very limited coordinating role, involving since 2013, compiling a scrutiny work programme in agreement with sectoral committees.

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Better cooperation

The Sub-​Committee made a number of recommendations regarding interparliamentary cooperation. First, that the Houses should host an interparliamentary meeting on an annual or bi-​annual basis to discuss a topical EU policy area or legislative proposal.67 Secondly, that the European Affairs and European Scrutiny Joint Committees should have regular meetings with Irish MEPs to discuss issues of mutual concern on the EU agenda. (Regular meetings between Irish MEPs who were members of key European Parliament Committees and relevant sectoral committees in the Oireachtas were also suggested.)68 Wisely, the Sub-​Committee was also open to the idea of meeting non-​Irish MEPs although it went no further than recommending that the European Affairs and Scrutiny Committees, and appropriate sectoral committees, consider holding consultations with the rapporteurs of European Parliament committees dealing with the policy or legislative proposals under scrutiny.69 Participation by MEPs in the EU-​related work of Oireachtas Committees would undoubtedly be valuable, but in practice has proved notoriously difficult to attain given differing loci of activity and the differing work schedules of Oireachtas members and MEPs. The proposal that the Oireachtas host an interparliamentary meeting was not implemented, but may be argued to have been rendered superfluous by the introduction of European Parliamentary Week.70 Mainstreaming

The EU’s legislative output is now so great that it is impossible for one or two parliamentary committees to have sufficient time or expertise to cope with it all. Unsurprisingly, research has shown that the most effective parliaments “mainstream” involvement in European affairs, thereby involving as much of entire membership as possible.71 The Sub-​Committee put forward five recommendations under the heading “mainstreaming”. The first was that both the two European Committees’ powers to refer EU documents and sectoral committees’ powers to consider them be rationalised, with appropriate reference being made to sectoral committees’ European role in the Houses’ Standing Orders. The Sub-​Committee also recommended strengthening the then generally sub-​optimal performance by sectoral committees in relation to European affairs by requiring sectoral committees to report back to a European Affairs and European Scrutiny Committee, rather than having an option to report back, as was the case under their then orders of reference. (The Sub-​Committee envisaged that Committee taking on a co-​ordinating role, ensuring that sectoral committees would receive proper support when considering EU issues.)72

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Secondly the Sub-​Committee recommended a rapporteur system be introduced for the consideration of important EU policy and legislative proposals, with an Oireachtas member being appointed rapporteur on a voluntary, case-​ by-​case basis.73 This idea was inspired by the system in use in the European Parliament. The Oireachtas has occasionally since used rapporteurs but not systematically, leading to the suggestion being repeated in a 2014 committee report.74 A further Sub-​Committee recommendation was that Standing Orders of both Houses be amended so that reports of the Joint Committee on European Affairs and the Joint Committee on European Scrutiny specifically recommended for debate in the Houses be taken for debate within a certain period.75 In 2013, the Standing Orders of the Dáil were indeed amended so that (with broadly-​worded exceptions) a newly set-​up Parliamentary Steering Group on EU Affairs would “prioritise for debate in the Dáil motions in regard to reports from the Select Committee on European Affairs or on other related EU matters and such business shall take precedence over other business in the Dáil…”76 Fourthly, the Sub-​Committee recommended that selected sectoral committees would be obliged to report to the Seanad periodically in respect of their EU-​related work. The idea was that the sectoral committee Chair would present the committee’s work to the Seanad and discuss it, a system (a) facilitating debate on EU issues within the Seanad, and (b) helping ensure that sectoral committees actually completed EU-​related work referred to them.77 This suggestion was not implemented. Similar ideas emerged from the 2015 Report of the Working Group on Seanad Reform, and were also not implemented. The Sub-​Committee also recommended that the week of 9 May (Europe Day) each year be set aside by the Dáil as a week for debates and events on EU-​related topics.78 Although the level of activity involved varies, Europe Week now features in the annual calendar of Oireachtas activities, with reference to it written into Dáil Standing Orders since 2013.79 Domestic impact

One of the areas of most concern from the standpoint of democratic accountability –​the transposition of EU Directives –​was the subject of five recommendations. The first was that regulatory impact assessments (which the Sub-​Committee thought Government Departments were expected to prepare for all EU Directives)80 should be circulated to the Joint Committee on European Affairs and the Joint Committee on European Scrutiny and the relevant sectoral committee. On the basis of the assessment, the relevant committees would advise the Minister on whether an EU Directive should be transposed by statutory instrument or Act of the Oireachtas.81 Minister for Foreign Affairs Micheál Martin

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expressed willingness to have the assessments circulated, but only “when draft legislation, including statutory instruments, is being circulated”. This would obviously deprive the exercise of much significance, since by then a decision would already have been taken on how to transpose the Directive. A further recommendation was that statutory instruments be circulated to all Oireachtas members six weeks before being signed by the relevant Minister. This would have been a considerable change from the then position whereby Oireachtas members had no opportunity to find out about statutory instruments until after they had been adopted.82 Unfortunately, this recommendation was not acted on. As noted in Chapter 5, a pilot scheme was however pioneered from 2013 by the then Minister for Transport, Tourism and Sport, Leo Varadkar TD whereby draft statutory instruments and explanatory notes were sent to relevant Joint Committees a month before signature.83 The Sub-​Committee also recommended that statutory instruments should be referred to the Joint Committee on European Affairs for scrutiny (presumably as draft instruments and at the same point in time), and furthermore, that the Minister should provide an explanation of why he or she was transposing these measures by statutory instrument if requested by the Joint Committee. Finally, the Sub-​Committee recommended that the Joint Committee have power to refer significant statutory instruments to either House for a full plenary debate. The Sub-​Committee also recommended that the explanatory memorandum provided by Departments for every statutory instrument be used to explain clearly the measures which the statutory instrument was introducing.84 The Sub-​Committee also recommended that the Seanad play an important role in the area of monitoring the transposition of EU Directives.85 No such role has subsequently been conferred (leading to the Sub-​Committee’s recommendations in this regard being expressly adverted to and repeated in the 2015 Report of the Working Group on Seanad Reform).86 In its penultimate recommendation under the rubric of “domestic impact” the Sub-​Committee recommended that the Joint Committee on European Affairs should be briefed on infringement actions taken or pending against Ireland for the non-​transposition or improper transposition of EU Directives. Like so many other worthy recommendations in the Creighton Sub-​Committee Report, this was never acted upon (leading to its being expressly repeated in a later 2014 Report).87 Reflecting the concern of Oireachtas members on being kept uninformed regarding the transposition of Directives, the Sub-​Committee observed that “in this respect, and in line with the previous two recommendations”, there should be a constant exchange of information between the Oireachtas European Committees and the Interdepartmental Coordinating Committee on EU Affairs chaired by

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the Minister of State for European Affairs which oversees the transposition of EU Directives.88 This was a sensible recommendation. The Sub-​Committee’s identification of guarding against “gold plating” (i.e., the inclusion of additional domestic regulations not required by parent EU legislation)” as a “key aim” of its recommendations was surprising, however: there seemed to be little evidence of this occurring.89 Indeed the Sub-​Committee’s final recommendation was of a study designed to establish whether there is any hard evidence for such activity taking place, or more exactly, that the Joint Committee on European Affairs study those Directives which had caused the greatest transposition concerns.90 This followed a suggestion made by then Foreign Minister Micheál Martin to the Sub-​Committee on 19 May 2010, motivated by a desire to see disproved what he felt were groundless allegations of “gold plating”. Sub-​Committee worries were perhaps understandable, however, given the extent to which the Oireachtas finds itself excluded from the process of transposing EU legislation. Public communication

Communicating with the public about European integration is challenging for most national parliaments. The Oireachtas is no exception  here. Building on Donohue Sub-Committee recommendations in this regard, the Creighton Sub-​Committee made two of its own:  first, that an EU information kiosk be established in the lobby entrance of the visitors’ gallery of Leinster House, to provide information to the approximately 50,000 members of the public visiting Leinster House annually.91 This step had already been taken in the Danish Folketing, where the kiosk in question has been reported to have become the biggest centre of information on European affairs in that country.92 Secondly, the Sub-​Committee recommended that the Oireachtas establish more formal links with the Representatives Offices of the Commission and the European Parliament in Ireland “in order to maximise their joint remit to communicate Europe”.93 These recommendations have not been followed through. Although some European-​related information has been made available at entrances to buildings in the Leinster House complex, the resources expended on this have clearly been minimal, contrasting with the substantial resources allocated to the equivalent Danish venture. Resources

Five unnumbered recommendations were made by the Creighton Sub-​ Committee concerning resources. Noting both the resource implications of the Lisbon Treaty and the burden which would result from implementing its own recommendations, “especially with regard to the oversight of transposition”, the Sub-​Committee was “firmly of the position that more resources, and in particular

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staff, should be directed towards the EU area”. It also expressed its belief that the Library and Research Service should be better resourced and should be available to the committees and/​or rapporteurs involved in EU scrutiny.94 These recommendations have merit, although questions could be raised regarding how much use Oireachtas members then or subsequently have made of existing research support facilities to support Oireachtas committee work.95 The Sub-​ Committee identified its own recommendations which would require additional resources.96 First, its recommendation of a scrutiny reserve system:97 the need for rapid, thorough analysis of legislative proposals and timely preparation of scrutiny reports led the Sub-​Committee to propose the addition of two policy advisors to the committees’ secretariat.98 Secondly, the proposal by the Sub-​Committee to strengthen of the role of sectoral committees led it to stress the importance of these committees receiving appropriate support to undertake this work efficiently and effectively,99 although it made no specific recommendation in this regard other than to reiterate the desirability of assigning two additional policy advisors.100 Thirdly, the Sub-​Committee stressed the need for research and policy analysis support for its suggested rapporteurs.101 It suggested an additional researcher be assigned to the Library and Research Service.102 Fourthly, the Sub-​Committee noted its proposal of consideration of proposed statutory instruments by the Joint Committee on European Affairs103 would place a significant additional burden on the Committee.104 The Sub-​Committee suggested two extra staff members (an administrator and policy advisor) be assigned to undertake these duties.105 The increased levels of staff called for seem modest given the scale of the tasks which implementation of the Sub-​Committee’s recommendations would involve. The Sub-​Committee itself described these levels as “indicative and… subject to proper analysis and the preparation of a full business case”. Ultimately, since the Creighton Sub-​ Committee’s resource-​ intensive recommendations were never implemented (with the partial exception of its recommendations on the empowerment of sectoral committees), its resourcing recommendations were ignored too (with subsequent Irish economic travails obviously not assisting matters). The Sub-​Committee also recommended that, were EU affairs to be mainstreamed across the Oireachtas, information and training seminars on EU matters should be more widely available to members of the Oireachtas and staff alike. The Sub-​Committee suggested that “such seminars could focus on the functioning of the EU, and in particular the EU legislative process, the role of the Oireachtas and its powers in respect of the EU and how to use information sources on the EU (e.g., IPEX, Prelex, EUR-​Lex etc.).”106

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The April 2014 report of the Joint Committee on European Union Affairs: Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs A third document involving significant consideration of the Oireachtas role in European Affairs was the 2014 Joint Committee on EU Affairs report Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs,107 a contribution to a Department of the Taoiseach review of the operation of the scrutiny process which itself has not to date been finalised, apparently due to the supervention of the 2016 election.108 The 2014 report provides an up-​to-​date assessment (from the Committee’s perspective) of how the current system is functioning. Some of its conclusions have already been touched on in Chapter 5. Its interest here stems from the fairly extensive and precise recommendations it made concerning the future. Much of the report’s contents reflected proposals in the Donohue and Creighton Sub-​Committee reports subsequently ignored by successive governments. Tellingly, in the General Comments section, the Committee called for the “comprehensive assessment and recommendations” contained in the earlier reports to be taken into account, expressing both its belief that the “vast majority of the recommendations contained in both reports” remained valid, and its regret “that many of the more significant recommendations, in particular those that would formally strengthen the power of the Oireachtas, e.g., the introduction of a scrutiny reserve, remain unimplemented”.109 The Committee accorded the present system only qualified praise, noting that in general terms was “working reasonably well, despite the constraints it faces and the context in which it operates”.110 However, “the current system falls down in a number of areas  –​legislative framework, resources, output-​focus and visibility –​which need to be addressed in order for it to become more effective”.111 It identified the resource constraints it referred to as being “financial, personnel and time-​related”.112 The Joint Committee made recommendations concerning three specific areas. Most related to improving scrutiny and Government accountability. A smaller group of recommendations concerned transposition of EU law obligations by statutory instrument. A third group of recommendations concerned expanding the level of parliamentary involvement in scrutiny and accountability. Scrutiny and accountability

A good deal of what the Joint Committee recommended related to the need to optimise the functioning of the scrutiny process (which was newly mainstreamed to sectoral committees during the lifetime of the 31st Dáil). An implicit acknowledgment of problems was seen in the Joint Committee recommendation that

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the decentralisation involved in mainstreaming should in future be tempered by an appropriate degree of centralisation. It recommended a standing Oireachtas committee on EU Scrutiny and European Affairs be created, with the necessary powers “to carry out a dual role of co-​ordinating and overseeing the ‘mainstreaming’ of EU work to sectoral Committees, while also dealing with institutional issues and formal scrutiny of cross-​sectoral and strategic EU matters”.113 No mention was made by the Joint Committee of the Parliamentary Steering Group on EU Affairs, established by amendment of the Dáil Standing Orders in May 2013, the function of which was “to give parliamentary and cohesive direction in European Affairs matters [and] to enhance the role of the Dáil in EU affairs through engagement with the Government and through Dáil Éireann and its Select Committees”, although that body is more restricted and Dáil-​centric than what the Joint Committee had in mind in its recommendation.114 The same 2013 amendment to Standing Orders, had also made it a function of the Select Committee on EU Affairs to present an annual EU work programme for adoption by Dáil Éireann by way of motion setting out its priorities and those of other Committees. In practice, this function is now carried out by the Joint Committee on European Affairs, which has presented an agreed non-​exhaustive list of scrutiny priorities every year since 2013 to both Dáil and to Seanad. The procedure has been refined over time and seems to take the Joint Committee in the direction its 2014 recommendation proposed it go.115 Several recommendations were directed at the Government, reflecting parliament’s dependence on the executive to provide sufficient cooperation to carry out its role. The Joint Committee found it necessary to remind the then Government of the (apparently unimplemented) commitment in its Programme for Government to forward regulatory impact assessments to sectoral Oireachtas committees as a matter of course.116 The information notes provided by Government Departments to Oireachtas committees were also the subject of a number of recommendations. The Joint Committee recommended these should fully explain the practical implications proposals would have117 and that Departments should complete all sections of the information note template.118 Furthermore, the practice of submitting information notes on Green and White Papers, and on request for recommendations, should be inscribed into relevant guidelines, and extended at least to key horizontal documents, such as the Annual Growth Survey and Annual Enlargement Strategy.119 One curious recommendation was that the Department of the Taoiseach should make arrangements for receipt of so-​called “notification of subsidiarity” letters at the same time of the Oireachtas. This was notwithstanding that under EU law, the operation of the early warning mechanism is supposed to be the preserve of the legislature.120

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The Joint Committee also directed advice to the Oireachtas as a whole and to sectoral Oireachtas committees. As regards the former, the Joint Committee expressly reiterated the (unimplemented) Creighton Sub-​Committee recommendation that a rapporteur system be introduced for significant proposals, noting approvingly that e.g., the Dutch Lower House used rapporteurs during the European Semester budgetary process.121 The seemingly prevalent (and to some extent, understandable) approach by sectoral committees of treating all or most items from the Commission Work Programme as priority items was rejected in favour of a more focused and less short-​term approach. The Committee recommended that in choosing priorities, sectoral committees shortlist Commission Work Programme proposals relevant to their remit and adopt an output-​focused approach targeting e.g., reports, political contributions under the political dialogue and reasoned opinions under the subsidiarity check.122 The Report also argued that Committees should also inform Departments of their scrutiny priorities for the year, once agreed.123 Appropriate publicity for scrutiny work was also a concern for the Joint Committee, which recommended that all scrutiny decision lists be made available together at one location dedicated to EU affairs on the Oireachtas website, and ultimately “a system put in place whereby the public could search an external version of the Oireachtas scrutiny database to determine the scrutiny status of a particular proposal”. The Joint Committee was impressed with the UK Cabinet Office’s approach in this regard and recommended the Department of the Taoiseach’s website develop a similar facility.124 The Committee referred to and repeated the Creighton Sub-​Committee recommendations that Ministers should be statutorily obliged to attend the relevant Oireachtas sectoral committee before Council meetings in order to discuss the Council agenda and report back to that committee on the outcome of the previous Council meeting. As an interim measure, it recommended pre-​Council meetings take place for at least every second Council meeting.125 The Joint Committee expressed its regret that earlier recommendations “that would formally strengthen the power of the Oireachtas, e.g., the introduction of a scrutiny reserve, remain unimplemented”.126 The Committee specifically recommended the introduction of such a reserve through an amendment to the European Union (Scrutiny) Act 2002,127 making Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs the third Oireachtas report in less than a decade to make such a recommendation. It correctly noted that the 2002 Act “leaves the Oireachtas relatively powerless when compared with the scrutiny regimes that many EU member states now have in place”.128

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Implementation of EU law obligations by statutory instrument

The Joint Committee also made some recommendations which concerned the transposition of EU measures via the adoption of statutory instruments. Noting that “the vast majority of [statutory instruments] are not sent to any Committee”, the Joint Committee recommended a consistent approach be adopted here and regarding the laying of such instruments before the Houses of the Oireachtas.129 It further recommended Government Departments have to indicate why secondary, rather than primary, legislation had been chosen either to transpose Directives or to support the implementation of EU regulations.130 The Committee also sought to broaden a 2014 initiative of the Department of Transport, Tourism and Sport that draft statutory instruments, and an explanatory note, be circulated to the relevant Committee a month before signature.131 Finally the lack of any power on the part of sectoral Oireachtas committees to annul (or even recommend annulling) statutory instruments implementing EU obligations drew the recommendation that the European Communities Act 1972 be amended to take account of mainstreaming.132 Implementing such recommendations would clearly improve what at present is a situation of dubious democratic legitimacy. Upgrading the status of parliamentary involvement in scrutiny and accountability

The Joint Committee also made three recommendations regarding expanding the level of parliamentary involvement in scrutiny and accountability. One was formalising the procedure, responsibility and timelines, of Oireachtas involvement in the European semester budgetary process.133 Another was a rather piqued demand that both the Oireachtas national parliamentary representative in Brussels and EU policy advisors to Oireachtas committees be given access to the Council’s Extranet  database of so-​called “Limité” documents.134 The third was the reiteration of the Creighton Sub-​Committee recommendation that the Oireachtas be briefed on infringement actions taken or pending against Ireland for failure to properly implement EU directives.135 All three of these proposals have a great deal to recommend themselves.

Another report of relevance: the 2015 Report of the Working Group on Seanad Reform The 2015 Report of the Working Group on Seanad Reform constitutes a postscript to this account, since it also briefly addressed European-​related matters. The Report followed the referendum rejection of the (putatively Seanad-​abolishing) Thirty-​second Amendment of the Constitution Bill 2013.

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Its proposals concerned reform of the Upper House. Its European-​related suggestions were brief (perhaps necessarily so, given the time constraints under which the Working Group operated and its broad subject matter).136 The Report merely reiterated four specific recommendations by the earlier 2004 Report on Seanad Reform:137 that the Seanad be given a new role in EU affairs with responsibility (i) for assessing legislative and other proposals going before EU Councils; (ii) for reviewing draft EU legislation of major national policy importance; (iii) for providing Irish MEPs with a domestic forum to discuss EU issues and account for their work; and (iv) for developing a medium-​term policy framework to address the challenges and opportunities facing Ireland in Europe over the next ten years.138 The 2015 Working Group added a fifth recommendation:  that the Seanad be responsible for the monitoring transposition of EU directives into Irish law. While implementing such proposals would vastly augment the Seanad’s role in European affairs, no reason was provided why the Seanad alone should assume these functions. It is unclear that any exists. Currently, many such tasks are carried out in Joint Oireachtas Committees (with the attendant advantage this has of facilitating obtaining the input of TDs). The 2015 Committee endorsed two individual proposals of the earlier Creighton Sub-​Committee, namely, amending the Standing Orders of both Houses so that reports of the Joint Committee on European Affairs and the Joint Committee on European Scrutiny be taken for debate within a certain time and that selected sectoral committees be obliged to report to the Seanad periodically in respect of their EU-​related work. Increased debate of such reports does seem desirable. However the Working Group’s former proposal took no account of the mainstreaming of European scrutiny to sectoral ­committees which had occurred in the lifetime of the 31st Dáil, and failed to note that the Joint Committee on European Scrutiny had been abolished in 2011. No justification for any of its proposals was provided by the 2015 Working Group beyond the general statement that “scrutiny by the Upper House has the potential to improve the output legitimacy of the EU”.139 Its recommendations do however serve as a useful stimulus for further debate concerning the undoubtedly important issue of the Seanad’s role in EU matters. Some life was given to the fourth recommendation of the Working Group by the Seanad’s own decision in February 2017 to establish a ten-​person cross-​ party Seanad Special Committee on the Withdrawal of the United Kingdom from the European Union. Intended to report to Seanad Éireann by the end of June 2017, the Special Committee’s raison d’être was to consider the implications for Ireland of Brexit. From April 2017, it conducted hearings from a

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range of business, civil society representatives and political figures, including two former Taoisigh, John Bruton and Bertie Ahern.

Some brief further reflections on the challenges ahead Some brief reflections on the challenges confronting the Oireachtas in European affairs seem appropriate in the light of the foregoing.140 The greatest challenge continues to be the need to establish a proper system of executive accountability. Ireland’s 2008–​13 economic crisis arguably stemmed in part from inadequate systems of oversight in both public and private sectors.141 The need to exert executive accountability in relation to European affairs forms part of this broader picture. A further, related challenge is for the Oireachtas (as one of nineteen eurozone parliaments) to establish a role in relation to Eurozone membership, a policy field transformed in response to economic crises which have raged since 2008.The tasks range from ensuring adequate accountability regarding eurozone summits to ensuring sufficient parliamentary input into the European Semester process.142 Finally, another need for the Oireachtas in the European policy field is that of implementing and operating successfully the Lisbon reforms concerning national parliaments. Suffice it to remind ourselves here that the Lisbon Treaty (now elaborated upon by Article 29.4.7º and 8º of the Constitution and the European Union Act 2009) provides for (a) a subsidiarity control mechanism with so-​called yellow and orange cards; (b) a national parliamentary veto on the use of so-​called passerelle provisions providing for shifts to so-​called qualified majority voting and to the ordinary legislative procedure;143 (c) vast quantities of information to be supplied directly to the Oireachtas from the EU; and (d) a role for national parliaments when certain special events happen  –​ e.g. an application by a state to become a member of the Union).144 There is also the operation of the political dialogue, and the need to participate in various interparliamentary fora, several (although not all) of which have made their appearance since the entry into force of the Lisbon Treaty. Such fora include the Conference of Speakers of EU Parliaments; COSAC; the European Parliamentary Week;145 the Interparliamentary Conference for the Common Foreign and Security Policy and the Common Security and Defence Policy; the Joint Parliamentary Scrutiny Group established by the 2016 Europol Regulation; meetings organised by the European Parliament; the IPEX website, and the operation of a national parliamentary office in Brussels in the context of an informal network of such offices.146

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Five desiderata for the Oireachtas in European affairs If the foregoing section sets out overarching challenges in the field of European affairs, certain challenges which appear particularly urgent can also be identified (without the claim being made that it is not possible to identify others). At least five occur. First, the Oireachtas needs a system to deal with the pre-​legislative phase at EU level: in other words, when legislation is in the offing, but has not yet been formally proposed. Secondly, the Oireachtas needs a system to deal with the draft legislative phase, i.e., once draft legislation has been formally proposed at EU level. Thirdly, the Oireachtas needs a system for implementing EU directives and regulations. The problem here is the current large-​scale use of statutory instruments for transposition with no real control worthy of the name by parliament, an unfortunate Irish tradition as old as this country’s membership of what is now the EU. Fourthly, the Oireachtas needs a system where EU policy is sought to be advanced through initiatives which do not involve the adoption of legislation. Fifthly, the Oireachtas needs to become an effective forum for the facilitation of a wider and deeper debate by the public on European issues. 1. A system for influencing policy-​making in the period before draft legislation is formally adopted at EU level

Influencing policy-​ making at European level requires early intervention. Involvement by the time draft legislation is proposed is often too late to bring about major change because the parameters of the debate will already have been established by the time legislation is drafted.147 Thus if the Oireachtas wants to maximise its influence, it should systematically intervene in EU-​level debates prior to the drafting of EU legislation. As was seen in Chapter 1, an EU framework already exists for such contributions, the “political dialogue” between the European Commission and national parliaments, introduced in 2006 as the “Barroso initiative” (after the then Commission President).148 According to the latest available Commission report, in respect of the year 2015, 350 reports were received in this year from national parliaments through the political dialogue.149 As was seen in Chapter 5, nine (2.6%) came from the two Houses of the Oireachtas, placing them in thirteenth place of thirty-​nine parliaments and chambers in the EU.This put them well ahead of a swathe of parliaments or chambers either largely or entirely uninterested in the political dialogue, mainly but not exclusively150 composed of the smaller EU members (and somewhat surprisingly including Denmark (whose Folketing produced only three reports) and the Finnish Eduskunta which produced one).151 However, the Oireachtas lagged well behind a group of seven parliaments or chambers largely (although again, not

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exclusively)152 comprised of parliaments or chambers from larger member states such as the UK, France, Germany and Italy, each of which had submitted at least twice as many opinions in the political dialogue process as Ireland. From an Irish perspective, this represented some improvement. As late as 2010, only three (0.76%) of a total of 387 reports produced by member states came from the Oireachtas, placing it in joint eighteenth place out of twenty-​ seven EU members states: in other words, only marginally outside the worst-​ performing third of parliaments.153 The Commission has frequently not excelled in providing useful feedback to national parliaments.Whether for this reason, or because national parliaments or chambers are shepherding limited resources, or for other reasons, it is striking that many national parliaments or chambers (including star performers such as the Danish Folketing, the Finnish Eduskunta and the German Bundestag) are making very little use of the political dialogue process. Some, like the parliaments of Slovenia, Estonia and Greece, made no use of it at all in 2015.154 2. A system for when draft legislation is formally proposed at EU level

The Oireachtas also needs to improve how it responds when legislation is formally proposed at EU level. The main concern must be securing accountability regarding what government ministers agree in Council. This remains the main democratic function of national parliaments in EU affairs. Ireland continues to have an extremely poor record here. The suggestion, made when the 2002 Act was adopted, that Ministers appear before relevant sectoral committees in the week before Council meetings, was never acted upon by any but a tiny minority of Ministers or Oireachtas Committees prior to the 31st Dáil. As noted in Chapter 5, although the programme for the new government promised comprehensive change, by the year 2015, a mere 15% of the seventy-​ eight Council meetings held in this year were being preceded by a ministerial briefing (a poor performance which carried over into the 32nd Dáil period).155 Even were something to be done about this, the resulting enhanced role for sectoral committees would scarcely suffice. Experience indicates that parliaments which give a strong role to sectoral committees must balance this with a central role for their European affairs committees.156 The balance sought between centralisation and decentralisation varies. The programme for government for the 31st Dáil period did not enter into the question, however, beyond committing to a role for sectoral committees strengthened well beyond current levels. Getting the balance right clearly presented challenges, a point confirmed by the April 2014 report of the Joint Committee on EU Affairs Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs.157 Some efforts were made to address this, e.g., by the Joint Committee publishing from 2013 on an agreed list of priorities in

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the European Commission’s annual Work Programme identified by the various sectoral committees.158 A further challenge is that the current framework creates no incentive for busy Ministers to appear before Oireachtas committees and take their deliberations seriously. Ireland lags behind other member states in assigning incentivising powers to its parliament. As has been seen, the Donohue Sub-​Committee, the Creighton Sub-​Committee and the April 2014 Report of the Joint Committee on EU Affairs all recommended a scrutiny reserve mechanism analogous to that forming the linchpin of the UK system,159 involving “an undertaking by Ministers that, bar exceptional circumstances, they will not agree to anything in the Council until it has been cleared through parliament”.160 Government for National Recovery 2011–​2016 appeared to hint that a scrutiny reserve system may be on the way, stating “systems must be put in place to ensure that Ministers do not bypass the Oireachtas and make decisions in Brussels on EU matters before these matters are subjected to scrutiny by the Oireachtas.161 The programme stopped short of providing an express commitment, however, and ultimately, no such system was introduced. Some indication of the then administration’s thinking was given by the observation by the then Tánaiste in the Seanad in late 2013 that “it is worth at least considering whether the principal shortcomings in Oireachtas scrutiny of EU legislative proposals are not, in fact, legal but arise from the need for further engagement, better focus and clear prioritisation”.162 In reality (and notwithstanding the contrary appearance given by the Donohue and Creighton Reports) little pressure was ever exerted either by the executive or parliament for the introduction of a scrutiny reserve system. As regards parliamentarians, this was because the constituency-​focused nature of an Irish parliamentarian’s work means little electoral reward could be expected for the work that operating a scrutiny reserve would involve. As regards the executive side, reluctance stemmed from fears that a scrutiny reserve might be operated in a sub-​optimal manner by parliamentarians, including possibly for leverage to advance local political concerns.163 A further lacuna in the system of accountability was that although by the time of the 30th Dáil, the Minister for Foreign Affairs (or Minister of State for European Affairs) met monthly with the Joint Oireachtas Committee on European Affairs, even here “the circle was not closed”. Having appeared before a pre-​Council Oireachtas Committee, a Minister did not have to reappear to account for what subsequently unfolded. It is, however, demoralising for Oireachtas members (and a disincentive to taking Committee work seriously) not to be told of the impact of pre-​Council discussions. An obligation to give an ex post facto account (preferably verbal, to prevent Ministers simply using statements supplied by civil servants) has been argued to be a necessary

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part of a system of ministerial accountability.164 No commitment to this has ever been given by an Irish government however, perhaps because it is felt it would tie down ministers excessively. 3. A system for where measures are adopted in Ireland to give effect to directives and regulations adopted at EU level

Democratic control over the use of secondary legislation in order to give effect to EU directives and regulations is obviously desirable. The nature of Oireachtas control needed here has been succinctly put as follows: there is little point in the Oireachtas engaging in lengthy debate about the substance of EU legislative measures at the time of their being transposed into Irish law, often by statutory instrument. At that stage, the policy issues are settled and our obligation is to apply the law agreed at EU level, having played a full part in its evolution and negotiation. What is appropriate at the time of transposition is for the Oireachtas to scrutinise the way in which the law is being transposed. It is a question of determining whether a statutory instrument is appropriate and proportionate, whether the penalties are proportionate and effective and whether it goes beyond what is required and so on.165

As was noted in Chapter 3, there is already a system under the European Communities Act 1972 (as amended by the European Communities Act 2007)  which seeks to establish democratic control over EU law  implementation via statutory instruments. (Indeed attempts to establish some form of control here have the longest pedigree of any Irish parliamentary oversight mechanism in European affairs, tracing their origins back to the adoption of the European Communities Act 1972166 and the subsequent establishment of the Joint Committee on the Secondary Legislation of the European Communities in 1973.)167 The system, however, is dysfunctional. No real oversight is exercised. Oireachtas members are generally scarcely aware of statutory instruments implementing European obligations until after they have been adopted.168 Even then there is little likelihood that they will be alerted to any given instrument’s existence within the twenty-​one days of its being “laid before the House”169 (during which it is technically possible to annul it by resolution of either House) since, despite the impression of publicity given by the name of this process, a document is deemed to have been “laid” before a House merely by means of a copy of the document being delivered to the Oireachtas library (normally electronically, since 2012).170 Further, no special parliamentary time is allocated to debate the annulment of such statutory instruments. The end result has been predictable: the ongoing large-​scale use by Irish ministers for decades of statutory instruments to implement all kinds of rules171 with

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no real Oireachtas control, even in cases where the more appropriate implementation means would be by statute, and even where the drafting of the legislation is flawed or inappropriate. 4. A system for where EU initiatives do not involve the adoption of legislation at all

A fourth challenge is the need to review the operation of EU-​level activity which does not normally give rise to legislative measures. This includes: (i) the EU’s foreign affairs and security policy (where the adoption of EU legislation is excluded);172 (ii) the operation of the open method of coordination173 (a process of intergovernmental peer review which is sometimes more palatable to member states than handing over broad powers of legislative initiative to the European Commission under the so-​called Community method);174 and (iii) the process of social dialogue between the social partners at EU level in general or sectoral negotiations.175 One possible approach in relation to the open method of coordination might be for hearings of participating Irish officials and Commission officials to be held in the Joint Oireachtas Committee on European Affairs, and an annual report to be written on the operation of the open method of coordination. As regards the social dialogue process, inviting the social partners at both Irish and European level to discuss recent developments in the European Affairs Committee annually or at six-​monthly intervals might also be useful, since these, rather than member state representatives are the main players in this process. Common foreign and security policy matters are another area in which an innovative approach is clearly required, with a premium often being placed on flexibility and confidentiality.176 As has been noted elsewhere in this book, the Oireachtas also needs to reflect further on its role in the European Semester process. 5. A system for making the Oireachtas an effective forum for facilitating wider debate by the public on European issues

Facilitating wider public debate on European issues was previously regarded as the terrain of the National Forum on Europe until it was closed by the Government after almost eight years in existence in April 2009 (in the lead-​in to the second Lisbon Treaty referendum).The letter from then Taoiseach Brian Cowan to Forum chairperson Senator Maurice Hayes announcing the Forum’s closure, referred to “the Oireachtas’ capacity for constructive debate about Europe, including hearing from a wide range of voices, from across civil society” and promised consultation “in relation to how we can optimise the Oireachtas’ role”. Similar ambitions were harboured by the Government which entered office in 2011:  the 2011 programme for government proposed that “the Oireachtas… be linked up with the Irish offices of the European Commission and the European Parliament in

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communicating Europe to the Irish people” and further promised that “outreach programmes, meetings and competitions particularly in schools will be organised and TDs and Senators invited to participate”.177 Oireachtas sub-​committees provided a forum for debate to some extent after the first unsuccessful Lisbon Treaty referendum in 2008. Further, during the lifetime of the 31st Dáil, during which a process of mainstreaming of European affairs took place, both sectoral committees and the Joint Oireachtas Committee on EU Affairs held debates on European themes of high salience, one prominent example being the Joint Committee of Inquiry into the Banking Crisis.178 With rare exceptions (of which this was one), the capacity of such committees to attract media attention and thereby communicate with a wider public has shown itself to be limited, however. Moreover, whether, in the long term, the Oireachtas –​composed, as it is, of parliamentarians who are normally able to dedicate only part of their time to legislative or policy matters –​is capable of replicating the work formerly done by the Forum on a professional and continuous basis, is questionable.179 As was noted in Chapter 4, the outreach work carried out by the Oireachtas during the lifetime of the 31st Dáil has tended to be limited in nature, largely confined to primary schools. Perhaps implicitly admitting the limitations attaching to the Oireachtas role as a forum for facilitating wider debate, part of the Government response to the June 2016 Brexit referendum was to initiate the All-Island Civic Dialogue on Brexit in November 2016, involving a consultation process with both plenary sessions and sectoral dialogues. The overall approach is somewhat reminiscent of that involved in the earlier National Forum on Europe.

A concluding observation Then Tánaiste Eamon Gilmore observed in 2013 that there is probably scope for more in the area of scrutiny of EU directives without legislative change. For example, the reports of the joint committees go to both Houses. It is open to both to have whatever debate they want to have on them. Issues such as the trade agreement with Canada, CETA… have been in the public domain for some time. There is no reason there could not be a debate on the agreement.180

While such observations do not constitute an adequate excuse for failing to introduce changes needed to facilitate the Oireachtas in its European vocation, it is also true that the Oireachtas itself does not always make optimum use of existing avenues for requiring accountability or debating issues concerning Ireland’s EU membership.Whether it will ever be able to do so in the context of a political culture and electoral system that seem to value constituency work above all else raises issues that clearly impact upon, and yet extend far beyond, the subject matter of this book.181

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Notes 1 See further Chapter 1 of this book. 2 See for a useful recent EU-​wide overview, C. Hefftler, C. Neuhold, O. Rozenberg and J. Smith (eds.)The Palgrave Handbook of National Parliaments and the European Union (Palgrave Macmillan, London, 2015). 3 See A. Maurer, “National Parliaments in the Architecture of Europe After the Constitutional Treaty” in G. Barrett (ed.), National Parliaments and the European Union –​ the Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008) 47 at 66. 4 Available online at www.oireachtas.ie/​viewdoc.asp?fn=/​documents/​committees30thdail/​j-​europeanaffairs/​Sub_​Cttee_​EU_​_​20081127.doc (accessed on 13 May 2017). 5 Available online at the time of writing at http://​euaffairs.ie/​publications/​Sub-​ Committee-​Report-​Review-​of-​Role-​of-​Oireachtas-​in-​European-​Affairs.pdf 6 F. Jacobs, “Review of the Role of the Oireachtas in European Affairs” (Undated submission to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs) at 1. See also the present writer’s own observation to the Sub-​Committee in its meeting of 5 May 2010 that “the bark of [the subsidiarity review] mechanism… is probably more significant than its bite, since European institutions to my mind do not appear to be serial abusers of subsidiarity but it is at the very least a first step and an opening of a crack in the door to greater generalised involvement of national parliaments in European matters.” 7 The turnout for the referendum was 53.1% (representing 1,614,866 valid votes). The Bill was rejected by 53.4% (862,415 votes) to 46.6% (752,451 votes). 8 See para. 9 of the executive summary of the Report. 9 Chapter 4, Paragraph 11. 10 Chapter 4, Paragraph 12. 11 Chapter 4, Paragraph 15. 12 Chapter 4, Paragraph 16. 13 Chapter 4, Paragraph 17. 14 Chapter 4, Paragraphs 18–​20. 15 See generally Chapter 4, Paragraph 21. 16 Chapter 4, Paragraph 22. 17 Chapter 4, Paragraphs 29–​30. 18 Varying views have been expressed on the merits of mandate systems. Former European Parliament President Pat Cox has positively assessed such system (views which concur with the present writer’s, which were put to the Sub-​Committee). (See views expressed by Cox at Oireachtas Sub-​Committee on Review of the Role of the Oireachtas in European Affairs on 5 May 2010 and earlier by author at Oireachtas Sub-​Committee on Ireland’s Future in the EU on 15 October 2008). Note however the (negative) view of former Taoiseach John Bruton (expressed to the latter Sub-​ Committee on 12 May 2010). Foreign Minister Micheál Martin articulated strong opposition even to a scrutiny reserve system in addressing the latter Sub-​Committee

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on 19 May 2010. Such views are examined in the text at note 59 in this chapter. See also the text after note 156. 19 Chapter 4, Paragraph 32. 20 Ibid. 21 The Sub-​Committee suggested this proposal be pursued in the framework of COSAC. (Chapter 4, Paragraph 33.) 22 Chapter 4, Paragraph 34. 23 To include Green and White Papers and various Opinions and Reports by the non-​ institutional bodies of the EU –​in the latter respect, it can only be commented that a highly selective approach would obviously have to be taken. (Chapter 4, Paragraph 35.) 24 Chapter 4, Paragraph 36. 25 Chapter 4, Paragraph 38. 26 Chapter 4, Paragraph 39. 27 Chapter 4, Paragraph 40. 28 Chapter 4, Paragraph 42.The suggestion was that these meetings take place in the week per month when the MEPs were dealing with constituency work and therefore more likely to be in Ireland. 29 Chapter 4, Paragraph 43. 30 Chapter 4, Paragraph 44. 31 See Chapter 4, Paragraph 22. 32 These were not named in the final Report, although they were Anthony Collins SC, Michael McDowell SC (former Tánaiste, Attorney General and Minister for Justice), the present writer, Pat Cox (president of the European Movement International and former President of the European Parliament), Brendan Halligan (chairman of the Institute of International and European Affairs and a former Senator, TD and MEP), John Bruton (former Taoiseach and EU Ambassador to the United States), Alan Dukes (former Minister for Finance, Minister for Agriculture and Minister for Justice and leader of Fine Gael), Micheál Martin TD (Minister for Foreign Affairs) and Irish MEPs Nessa Childers, Seán Kelly and Mairead McGuinness. 33 Namely, the Fianna Fáil MEPs (Pat the Cope Gallagher, Brian Crowley and Liam Aylward); Bernard Durkan TD (the Chairman of the Joint Committee on European Affairs) and Senator Joe O’Toole. 34 Francis Jacobs, well-​known for his published work on the European Parliament. See generally in relation to the submissions received Appendix IV to the Sub-​Committee’s Report. 35 These were set out in resolutions adopted on 10 December 2009 by both Houses of the Oireachtas at Vol. 698 Dáil Debates 1 (10 December 2009) and Seanad Debates Volume 199 No. 6 (10 December 2009) respectively. The resolutions were adopted in the light of, inter alia, a Report by the Joint Committees on European Affairs and European Scrutiny Joint Report on Implementation of the Lisbon Treaty: Interim arrangements on the enhanced role of the Houses of the Oireachtas. (See paragraph (b) of each resolution.) According to the resolutions’ own terms, the interim arrangements were intended to apply only until the adjournment of each House for the 2010 summer recess.

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36 See Sub-​Committee Terms of Reference. 37 See Annex to the Sub-​Committee’s Report. They are nevertheless of interest in that they give an idea of the main focuses of concern which led to the establishment of the Sub-​Committee. The first module was the one most directly related to the Lisbon Treaty. It was to be a review of the interim arrangements which had already been adopted in the Houses of the Oireachtas implementing the powers conferred by the European Union Act 2009 –​enacted to give effect to the requirements of the Lisbon Treaty –​in addition to involving looking at other roles conferred on the Oireachtas by the Lisbon Treaty although not contemplated by the European Union Act 2009. The second module was also Lisbon Treaty-​related.This module involved consideration of recommendations that had already been made by the earlier (Donohue) Sub-​Committee on Ireland’s Future in the EU –​including that Sub-​Committee’s calls for (a) the introduction of a scrutiny reserve mechanism; (b) consultation in advance of the publication of the European Commission’s Annual Policy Strategy and the annual Legislative and Work Programme of the same institution; and (c) structured arrangements for pre-​Council meetings with all sectoral Oireachtas Committees. (The Sub-​Committee on Ireland’s Future in the EU was set up in the wake of the failure of the first Lisbon Treaty referendum.) The third module concerned how inter-​ parliamentary cooperation could be enhanced. The fourth module was to be about optimisation of the consideration of EU Affairs by the Houses of the Oireachtas (and was to include the topic of mainstreaming). The fifth module was on Oireachtas oversight of the transposition of EU law and on regulatory impact assessments. The sixth module concerned resources and training (and was to include consideration of a EU information office). (See in relation to all of the foregoing, the Terms of Reference of the Joint Sub-​Committee.) 38 See now variously Articles 145, 146 and 150 TFEU (dealing with the coordinated strategy for employment), Article 173 TFEU (dealing with industry), Articles 168 TFEU (dealing with public health), Article 181 TFEU (dealing with research and technological development activities), Articles 153(2) and 156 TFEU (dealing with social policy) and Article 171(2) TFEU (dealing with trans-​European networks). 39 See now Articles 152 to 155 TFEU. These policy areas had been specifically brought to the attention of the Sub-​Committee during its hearings as fields requiring attention by the present writer at the meeting of the Sub-​Committee of 5 May 2010. 40 In his address to the Sub-​Committee on 19 May 2010, the then Foreign Minister Micheál Martin stated that he had seen little concrete evidence to support the claim that such “gold plating” was taking place. 41 The Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs heard from eleven expert witnesses (This is the author’s calculation. The witnesses are named at n. 32.) The Sub-​Committee on Ireland’s Future in the EU (admittedly with a far wider field to consider) in contrast heard from 110 witnesses (see chairman’s foreword to that Report). In fairness, not all of the latter witnesses would have been considered expert, however. This Sub-​Committee, operating between two referendums,

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appears to have felt obliged to provide a hearing to both sides in the Lisbon referendum debate and in choosing witnesses, representativity seems at times to have played as much a role as expertise. 42 Or the entry into force of the relevant amendments to Article 29.4 of the Irish Constitution or the enactment of the European Union Act 2009. This was an opportunity missed. Both the need to reflect on these issues and the desirability of comparative reflection (and a suggestion as to how this might be undertaken) were pointed out by this writer in his evidence to the Sub-​Committee at its 5 May 2009 meeting. 43 See further text below at note 167 onwards. See generally Recommendations 1 to 3 of the Report on the Review of the Role of the Oireachtas in European Affairs at 9 to 10. 44 See Government for National Recovery 2011–​2016, at 24–​25 thereof.The text of this is available online at www.taoiseach.gov.ie/​eng/​Work_​Of_​The_​Department/​Programme_​ for_​Government/​Programme_​for_​Government_​2011–​2016.pdf (accessed on 13 May 2017). 45 See para. 35 of the 2014 Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs. 46 Ibid., para. 41, 10. 47 See generally Recommendations 4 and 5 of the Report on the Review of the Review of the Role of the Oireachtas in European Affairs at 10 to 11 thereof. Some consensus appeared to exist in relation to this point. Hence, the then Minister for Foreign Affairs Micheál Martin TD had observed to the Sub-​Committee on 19 May 2010 that under the [European Union (Scrutiny) Act], the Oireachtas receives six-​monthly Reports from every Minister, and in addition, my Department on behalf of the Government makes an annual Report on developments in the EU. There seems to me to be a level of duplication in these Reports which serves no useful purpose. In addition to these Reports specifically on the EU, each Department is required to publish an annual Report which incorporates substantial material on relevant developments at EU level. I  would suggest that this aspect of the [Act] could be reviewed with the aim of producing a more streamlined system of reporting which meets the needs of the Oireachtas and lightens the administrative burden.

48 See text above at pp. 199–200 and see more generally on the 2014 Report p. 298 et seq. 49 See the insightful submissions made in F. Jacobs, “Review of the Role of the Oireachtas in European Affairs” (Undated submission to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs) at 1–​3 thereof. 50 Recommendation 6 of the Sub-​Committee’s Report at 11–​12. 51 Recommendation 7 of the Sub-​Committee’s Report at 12. 52 This call was expressly repeated in the 2014 Report of the Joint Committee on European Union Affairs: Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs. See text below at note 134. 53 Recommendation 8 of the Sub-​Committee’s Report at 13. This followed a suggestion to this effect made by the present writer in his contribution to the Committee on 5 May 2010. Support for the idea of calling Ministers before Oireachtas committees after each Council meeting was expressed at the same meeting by Brendan Halligan, chairman of the Institute of International and European Affairs. Support for the idea

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of calling Ministers before Oireachtas committees prior to Council meetings was expressed by former Taoiseach John Bruton in his contribution to the Sub-​Committee on 12 May 2010. See discussion of the relationship between Government Ministers and the Oireachtas regarding meetings of the Council of Ministers in Sub-​Committee meeting of 12 May 2010, particularly the contribution of John Perry TD. In addressing the Sub-​Committee on 19 May 2010, the then Foreign Minister merely referred vaguely to the possibility that current arrangements “could be enhanced by a more regular process of pre-​and post-​Council consultation of the Oireachtas”. Observations made to Sub-​Committee meeting of 5 May 2010. Contribution made to the Sub-​Committee meeting of 12 May 2010. Recommendation 9 of the Sub-​Committee’s Report at 13. Pre-​Council ministerial appearances before the relevant sectoral committee by all Cabinet colleagues were apparently strongly encouraged by Taoiseach Enda Kenny during the lifetime of the 31st Dáil. (Source: interview with Minister of State for European Affairs, Dara Murphy TD, 30 September 2015.) The effect appears to have been limited, however. Recommendation 10 of the Sub-​Committee’s Report at 13. Former President of the European Parliament Pat Cox observed in his evidence to the Committee on 5 May 2010: Consider the difference between scrutiny reserve systems and mandate systems. Scrutiny reserve represents an improvement over what is in place at present. I have been privileged to have been in attendance at all the European affairs committees in each parliament in the Union and each parliament in every actual or likely accession state. Those states that operate the mandate system have very impressive systems. They are mainly, but not exclusively, Scandinavian. Ministers do not take lightly coming to a committee and contracting their margin of manoeuvre for Council debates. This matters in that if there is executive accountability, it should start as the journey starts and not later in the process. From what I have seen in committees, I am in favour of the mandate system.

The present writer, who was invited to give evidence before the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs and the Donohue Sub-​ Committee (on three occasions), also supported the idea of a mandate system, before both Sub-​Committees. (See e.g., debates of Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs of 5 May 2010). 61 Former Taoiseach John Bruton, expressed fears to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs, 12 May 2010 that a mandate system “would make it very difficult to Ministers going to meetings to have the sort of room for manoeuvre that one needs to be able to negotiate with colleagues”. Brendan Halligan, chairman of the Institute of International and European Affairs, was somewhat ambivalent in his views on the mandate systems in general in his evidence to the Sub-​Committee, having no apparent objection to a Finnish-​style system while uncomfortable with the idea of the importation of the Danish version

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of a mandate system. He observed that “the Danish system puts a straitjacket on the Government and I do not agree with this” while also acknowledging that “it is worthwhile examining the Finnish system, which is sophisticated”. (See debates of Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs of 5 May 2010). 62 Former Taoiseach John Bruton, speaking to the Sub-​Committee on 12 May 2010 pronounced himself “more favourable to the scrutiny reserve system” than to a mandate system.This however was as favourable a review as the scrutiny reserve system received from any witness to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs. Nonetheless, the Sub-​Committee, like the Sub-​Committee on Ireland’s Future in the EU before it, recommended a scrutiny reserve system and individual members of the Committee were clearly strongly in favour of this approach. (See e.g., the opinions of Deputy Joe Costello as expressed at the meeting of the Joint Committee on 19 May 2010.) Many of the members of the Sub-​Committee had earlier been members of the Sub-​Committee on Ireland’s Future in the EU, and it may be that (a) the very strong support given to a scrutiny reserve system by witnesses before that Committee such as Professor Deirdre Curtin and Sir John Connarty, the then Chairman of the Scrutiny Committee in the House of Commons, and (b) the more radical-​seeming approach involved in a mandate system continued to play a role before the later Sub-​Committee. 63 See views expressed by Mr Martin to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs, 12 May 2010, in which he raised fears of inflexibility in negotiations, in addition to negative resource, workload, cost and constitutional implications. 64 Recommendation 11 of the Sub-​Committee’s Report at 14–​15. 65 Recommendation 12 of the Sub-​Committee’s Report at 15. 66 Recommendation 13 of the Sub-​Committee’s Report at 15–​16. 67 Recommendation 14 of the Sub-​Committee’s Report at 16–​17. 68 Recommendation 15 of the Sub-​Committee’s Report at 18. 69 Recommendation 16 of the Sub-​Committee’s Report at 18. A  series of useful recommendations relating to closer cooperation between the European Parliament and the Oireachtas are to be found in F. Jacobs, “Review of the Role of the Oireachtas in European Affairs” (Undated submission to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs) at 4–​7 thereof. 70 See regarding this, Chapter 1. 71 See e.g., T. Raunio, “Ensuring Democratic Control over National Governments in European Affairs” in G. Barrett (ed.) National Parliaments and the European Union The Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008), 3 at 9. This issue was raised by former European Parliament President Pat Cox before the Sub-​Committee on 5 May 2010, and by the present writer at the same session. A contrary opinion was offered at the same meeting by IIEA chairman Brendan Halligan. 72 Recommendation 17 of the Sub-​Committee’s Report at 18–​19.

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73 Recommendation 18 of the Sub-​Committee’s Report at 19–​20. This was mentioned by former Taoiseach John Bruton in his evidence to the Sub-​Committee on 12 May 2010. 74 See Recommendation 20 of the 2014 report of the Joint Committee on EU Affairs Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs, examined in detail in the text below. 75 Recommendation 19 of the Sub-​Committee’s Report at 20. 76 Standing Order 102A, the contents of which have now been re-​enacted in Standing Order 111. See 802 Dáil Debates 47–​48 (7 May 2013). 77 Recommendation 20 of the Sub-​Committee’s Report at 20. 78 Recommendation 21 of the Sub-​Committee’s Report at 20. 79 Standing Order 102A, the contents of which have now been re-​enacted in Standing Order 111. (See paragraph 3 thereof.) 80 In reality, such assessments are rarer than this. On 19 May 2010, then Foreign Minister Micheál Martin told the Sub-​Committee Government Departments “are required to conduct a RIA on all primary legislation involving changes to the regulatory framework. In principle, this also applies to secondary legislation transposing significant EU directives… I see merit in the [Donohue Sub-​Committee] recommendation that RIAs be prepared on the transposition of all significant EU measures.” (Emphasis added.) The last two sentences clearly imply that research assessment exercises were not then being carried out on secondary legislation transposing significant EU directives. 81 Recommendation 22 of the Sub-​Committee’s Report at 20–​21. 82 Note suggestions made before the Sub-​ Committee by the present writer on 5 May 2010. 83 See p. 190 above and see Vol. 227 Seanad Debates (24 October 2013) at 163. 84 Recommendation 23 of the Sub-​Committee’s Report at 21. 85 Recommendation 24 of the Sub-​Committee’s Report at 21. An enhanced role for the Seanad was advocated e.g., by former Tánaiste, Minister for Justice and Attorney General (and later Senator) Michael McDowell SC in his contribution to the Sub-​ Committee on 28 April 2010. 86 The 2015 Report is examined in the text below after note 133. 87 See text below at note 133. 88 Recommendation 25 of the Sub-​Committee’s Report at 21–​22. 89 See in this regard the address of then Foreign Minister Micheál Martin to the Sub-​ Committee on 19 May 2010. 90 Recommendation 26 of the Sub-​Committee’s Report at 22. The Committee recommended that the study include a comparative analysis of how these Directives had been applied in other EU Member States. 91 Recommendation 27 of the Sub-​Committee’s Report at 22. 92 See in this regard F. Jacobs, “Review of the Role of the Oireachtas in European Affairs” (Undated submission made to the Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs) at 7–​9. Further useful recommendations on communicating on Europe are made by the same writer in the same location. 93 The Committee observed that:

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initiatives that could be considered include the establishment of a planned tour for students which encompasses a visit to Leinster House and a visit to the EU Offices; the organisation by the Commission and/​or European Parliament of outreach programmes, meetings and competitions, particularly in schools, which TDs and Senators could be invited to provide input.

(See Recommendation 28 of the Sub-​Committee’s Report at 23.) 94 See generally para. 45 of the Sub-​Committee’s Report at 23. 95 Source:  interview conducted by present writer on 1 of December 2010 with Oireachtas staff member in which the Joint Oireachtas Committee on European Affairs was identified as one of the lightest users of the Service’s facilities, in addition to observations by present writer of meetings of both Joint Oireachtas Committees dealing with European questions in 2010. Note also the observations in this regard by former Tánaiste, Minister for Justice and Attorney General Michael McDowell SC in his contribution to the Sub-​Committee on 28 April 2010 in which he contrasted his experience appearing as a Minister before the Oireachtas European Affairs Committee with his experience as a witness before the equivalent Committee of the House of Lords. Of the former Committee, he observed it was my experience meetings were held early in the morning or late in the afternoon –​ they were more likely to be in the morning –​at which the Minister arrived with a retinue of officials and a large volume of paperwork which had been given 24 or 48 hours earlier to members of the Committee. The background to the legislative proposals and the agenda items of the Justice and Home Affairs Council was not explored in any great detail… There was a tendency for those discussions to dilate onto more topical issues of justice and home affairs in this jurisdiction rather than concentrating on what Europe was proposing to do. When I was Minister for Justice, Equality and Law Reform I went to the House of Lords to appear as a witness before its committee on European affairs, in conjunction with hearings it was having on justice and home affairs, the opt-​out and the emergency brake clause which were then under negotiation. It struck me at the time…that this measure was receiving far more detailed consideration in Westminster than it received in Leinster House, although it was of equal importance to both jurisdictions. Arising from that encounter, it struck me that it had done a lot of work and had a good deal of research behind it by way of backup. When it invited me and other witnesses, including academics and European jurists, to talk about it, it was very well briefed on the subject it was discussing. Its questioning was particularly to the point and searching. That all points to what I consider is a real problem for the Oireachtas, based on my experience and observations… It occurs to me, in particular in the context of the passage of the Lisbon Treaty, that the Oireachtas has to up its game very substantially.

96 97 98 99 100 101

See para. 46 of the Sub-​Committee’s Report at 23. Recommendations 11 and 12 of the Sub-​Committee’s Report. Para. 46 of the Sub-​Committee’s Report at 23. Recommendation 17 of the Sub-​Committee’s Report. Para. 46 of the Sub-​Committee’s Report at 23. Recommendation 18 of the Sub-​Committee’s Report.

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102 Para. 46 of the Sub-​Committee’s Report at 24. 103 See Recommendation 22 of the Sub-​Committee’s Report. 104 The Committee noted that in 2009, 115 of 590 statutory instruments signed into law by a Minister were adopted under the European Communities Acts. A significant number of European Directives had also been transposed by statutory instruments brought under other primary legislation, however. 105 Para. 46 of the Sub-​Committee’s Report at 24. 106 See para. 47 of the Sub-​Committee’s Report at 24. 107 April 2014, Reference no. 31ENUA0011. 108 The review is understood to have been initiated by the Department of the Taoiseach under the direction of an Inter-Departmental Committee on EU Engagement, chaired by the then Minister of State for European Affairs in consultation with Government Departments and with the Houses of the Oireachtas. The Oireachtas was represented by observers on this Committee, who were officials from the Committee Secretariat – EU and International Relations. 109 Paras. 6 to 7 of the Report. The Committee also referred, in its general comments to the present writer’s earlier work, and to note specifically that it had held a hearing with him on 10 October 2013 “and largely agreed with his overall assessment of the Oireachtas EU scrutiny system and how it might be improved.” (See para. 9 of the Report.) Evidence was also given by the author in hearings leading to the Donohue and Creighton Sub-​Committee Reports (on, respectively, three and one occasions) upon which express reliance was made in the former Report. 110 Para. 10 of the Report. Emphasis added. 111 Ibid. 112 Para. 12 of the Report. 113 Recommendation 1. See para. 17 of the Report.The Committee specifically adverted to para. 13 of the earlier Creighton Sub-​Committee Report in arriving at this conclusion. 114 Standing Order 102A, now replaced by Standing Order 111. 115 See e.g., Joint Committee on EU Affairs, Oireachtas Committees’ EU ScrutinyWork Programme 2015 –​Agreed List of Priorities (2015). 116 Recommendation 18. See paras. 65–​66 of the Report. 117 Recommendation 6. See para. 40 of the Report. 118 Recommendation 8. See para. 41 of the Report. One sensible suggestion subsequently made to the writer by an interviewee within the Department of the Taoiseach has been that information notes from Departments should include details of intended means of transposition of a EU law as well as reasons for choosing this means. 119 Recommendations 9–​11. See para. 45 of the Report. 120 Recommendation 5. See para. 38 of the 2014 Report. 121 Recommendation 20. See para. 71 of the Report. 122 Recommendation 4. See para. 26 of the Report. The Joint Committee recommended that the Government should also communicate its priorities from the Commission Work Programme. 123 Recommendation 7. See para. 41 of the Report.

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124 Recommendations 12 and 13. See para. 51 of the Report. 125 Recommendations 2 and 3.  See para. 23 of the Report. This aim has never been achieved. See further text below at n. 165. 126 Paras. 6 to 7 of the Report. Note also text after n. 58 above. 127 Recommendation 19. See paras. 69 to 70 of the Report. 128 Para. 11 of the Report. 129 Recommendation 16. See paras. 58–​59 and 62 of the Report. 130 Recommendation 14. See paras. 54 to 55 of the Report. 131 Recommendation 17. See paras. 63 to 64 of the Report. 132 Recommendation 15. See para. 62 of the Report. This recommendation concerned s. 4(1)(b) of the 1972 Act. 133 Recommendation 21. See para. 72 of the Report. 134 Recommendation 23. See para. 74 of the Report. 135 Recommendation 22. See para. 73 of the Report. 136 Note that the Report was preceded by legislative initiatives taken by Opposition or independent Senators (viz., the Seanad Reform Bill 2013 and the EU Scrutiny and Transparency in Government Bill 2013) which also contained some proposals concerning the role of the Seanad in EU affairs. 137 This was the work of the Seanad Éireann Committee On Procedure And Privileges Sub-​Committee On Seanad Reform, chaired by then Senator Mary O’Rourke. 138 See 13 of the 2004 O’Rourke Sub-​Committee Report. 139 This justification was not applied to the proposal that the Seanad be responsible for monitoring the transposition of EU directives into Irish law. 140 An earlier version of the reflections which follow received the imprimatur of the Joint Committee on EU Affairs. See note 107 in this chapter. 141 For an analysis of Ireland’s descent into economic crisis, see D. Donovan and A Murphy, The Fall of the Celtic Tiger:  Ireland and the Euro Debt Crisis (Oxford University Press, Oxford, 2013). 142 See most recently in this regard, Sub-​Committee on Dáil Reform, Final Report (24 May, 2016) and see earlier OECD (Directorate For Public Governance & Territorial Development, Budgeting And Public Expenditures), Review of Budget Oversight by Parliament: Ireland (Autumn, 2015). 143 Which involves both qualified majority voting and a role for the European Parliament as co-​legislator with the Council of Ministers. 144 In relation to which, see Article 49 TEU. 145 Embracing both the Interparliamentary meeting on the European Semester Cycles and the Interparliamentary Conference on Stability, Economic Coordination and Governance in the EU. 146 See further Chapter 1 of this book.The challenge of fulfilling its European-​related vocation has not of course been the only extant stimulus to change, even if it is the one of most concern in this book. Perhaps not surprisingly, the onset of economic crisis coincided in time with a fall in confidence on the part of the public in the Oireachtas as an institution. (See in relation to a fall in confidence in the Oireachtas which preceded

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the onset of the present crisis, G.  Barrett, “Oireachtas Control over Government Activity at European Union Level: Reflections on the Historical Context and the Legal Framework” in Barrett (ed.), National Parliaments and the European Union, 145 at 176) and in trust in the Government. (See in relation to survey evidence of this, R. McGreevy, “Most People No Longer Trust Church, Government or Banks”, Irish Times, 29 April 2010). This too arguably demanded a response on several levels –​including reform of how the Oireachtas goes about its business, with this need forming an important context for the more specific requirements in the field of European policy. Much impetus for Oireachtas reform was arguably lost, however, by the Government’s unsuccessful pursuit of constitutional change to bring about the abolition of the Seanad, and before this, a referendum seeking to increase considerably the investigative powers of Oireachtas committees. Despite Government backing, a referendum proposal to secure the former objective was narrowly defeated (by a 51% majority of votes cast) in October 2013, one to secure the latter having already been defeated in October 2011 (by a 53% majority). 147 See generally regarding the difficulties for a national legislature in exerting influence on the European policy agenda, T. Raunio, National Parliaments and European Integration –​ What We Know and What We Should Know (Arena Working Paper No. 02, Centre for European Studies, University of Oslo, January 2009) at 16–​17. (See also T. Raunio, “National Parliaments and European Integration:  What We Know and Agenda for Future Research” (2009) 15 Journal of Legislative Studies 317.) 148 See Communication from the Commission to the European Council A Citizens’ Agenda –​Delivering Results for Europe (COM/​2006/​0211 final). See now the dedicated website created by the Commission concerning the political dialogue at http://​e c.europa.eu/​d gs/​s ecretariat_​g eneral/​relations/​relations_​o ther/​n po/​ index_​en.htm 149 European Commission, Annual Report 2015 on Relations Between the European Commission and National Parliaments (Brussels, 15 July 2016 (COM(2016) 471 final)). See in particular Annex 1 thereof. The figure of 350 however, includes eight reasoned opinions under the Subsidiarity Early Warning Mechanism. Note that this represents a considerable decline: the corresponding figure in 2014 was 506 opinions, including 21 reasoned opinions under the Subsidiarity Early Warning Mechanism. 150 It includes the German Bundestag, the Dutch Eerste Kamer and the Polish Sejm. 151 The Greek, Estonian and Slovenian parliaments produced none at all. In this they were joined by the Polish Sejm, the Belgian Sénat and the Austrian Nationalrat. 152 This group was led by the Portuguese Assembleia (with fifty-​five opinions) and the Romanian Camera Deputatilor (with forty-​seven). 153 European Commission, Annual Report 2010 on Relations Between the European Commission and National Parliaments (COM(2011) 345 final, Brussels, 10 June 2011). See in particular Annex I. 154 See note 149 in this chapter. 155 See further in this regard, text of Chapter  5, after n. 62. By 10 March 2017, eight Council meetings had occurred in 2017 in Brussels. No prior ministerial briefings were

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provided to any Oireachtas committee in relation to any although one ex post facto briefing was provided by a Minister of State at the Department of the Taoiseach to the Joint Committee on EU Affairs on 15 February covering two separate meetings of the General Affairs Council. 156 See in this regard Chapter 2. 157 See text at n. 111 above. See also comments to similar effect of Dominic Hannigan TD (then Chairman of the Joint Oireachtas Committee on EU Affairs in House of Lords The Role of National Parliaments in the European Union (9th Report of the 2013–​14 Session, HL Paper 151), at 13. 158 See Joint Committee on EU Affairs, Oireachtas Committees’ EU Scrutiny Work Programme 2015 –​Agreed List of Priorities (2015). 159 A description used in C.  Kerse, “Parliamentary Scrutiny in the United Kingdom Parliament and the Changing Role of National Parliaments in European Union Affairs”, in Barrett (ed.), National Parliaments and the European Union, 349 at 356. Other member use a mandate system for this purpose, using it to leverage input into the formulation of a policy. 160 D. Jones, UK Parliamentary Scrutiny of UK Legislation (Foreign Policy Centre, Confederation of British Industry, 2005) at 4. 161 See Government for National Recovery 2011–​2016 at 24. 162 Eamon Gilmore TD, then Minister for Foreign Affairs and Tánaiste, speaking in the Second Stage Seanad debate on the Opposition-​proposed (and ultimately unsuccessful) EU Scrutiny and Transparency in Government Bill 2013. (See Vol. 227 Seanad Debates (24 October 2013) at 163.) 163 Source: interview conducted by author with then Minister of State for European Affairs, Lucinda Creighton TD, on 27 July 2012. Such fears are not without foundation: see in this regard e.g., Anon., “Healy-​Rae outlines price of support”, Irish Times, 4 November 2010 concerning the price in terms of constituency concessions demanded by one member of parliament in exchange for parliamentary support for one of the most crucial budgets in the history of the State, that preceding the November 2010 EU-​IMF bailout. Nor should this be seen as a once-​ off occurrence. See more recently, M.  Brennan, “Lowry’s Secret Health Deal with FG’s Harris”, Sunday Business Post, 28 August 2016, and analogously, P. Leahy, “Halligan Accuses Noonan of Reneging on Waterford Hospital Promises”, Irish Times, 8 September 2016. 164 See suggestion by the writer referred to at n. 52 above; See also B.  Halligan (chair of the Institute of International and European Affairs (speaking before the Oireachtas Sub-​ Committee on Review of the Role of the Oireachtas in European Affairs on 5 May 2010) and L. O’Hegarty, “Parliamentary Scrutiny of European Affairs in Ireland —​The European Affairs Committee, the Scrutiny Committee, and the European Union (Scrutiny) Act 2002” in G. Barrett (ed.) National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures (Clarus Press, Dublin, 2008) 273 at 296. For an interesting study of the varying effects of ex ante and ex post parliamentary control mechanisms, see P. de Wilde, “Designing Politicization: How control mechanisms

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in national parliaments affect parliamentary debates in EU policy-​formulation” (Arena Working Paper No. 13, Centre for European Studies, University of Oslo, August 2009). 165 Eamon Gilmore TD, then Minister for Foreign Affairs and Tánaiste, speaking in the Second Stage Seanad debate on the Opposition-​proposed (and ultimately unsuccessful) EU Scrutiny and Transparency in Government Bill 2013. (See Vol. 227 Seanad Debates (24 October 2013) at 163.) 166 The relevant provisions of which were quickly replaced by the European Communities (Amendment) Act 1973. See generally M. Robinson, “Irish Parliamentary Scrutiny of EC Legislation” (1979) 16 Common Market Law Review 9. 167 These developments are analysed in Chapter 3 of this book. 168 Under s. 3A of the European Communities Act 1972 as inserted by s. 3 of the European Communities Act 2007: every [implementing regulation shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(Emphasis added.) 169 Details of this obscure procedure are provided in the Standing Orders of Dáil Éireann (SO 199)  and Seanad Éireann (SO 158). Some details are also provided on the Oireachtas website at www.oireachtas.ie/​parliament/​about/​libraryresearchservice/​ documentslaid/​FAQs/​ (accessed on 13 May 2017). 170 The function of receiving delivery was assigned to the library by the Clerks of the two Houses. Since 2012, electronic means have become the principal means of laying documents. 171 Including, since the coming into force of the European Communities Act, 2007, the creation of indictable offences. A considerable volume of jurisprudence was generated in the Courts by various efforts to challenge the current extent of reliance on statutory instruments, but notwithstanding some initial successes, extensive reliance on statutory instruments remains extensive in relation to the implementation of EU norms. See for two of the most important Supreme Court rulings in this regard, Meagher v Minister for Agriculture [1994] 1 I.R. 329 and Maher v Minister for Agriculture and Food [2001] 2 I.R. 139. See for a general discussion of the case-​law in this area, G. Barrett, “The Evolving Door to Europe: Reflections on an Eventful Forty Years for Article 29.4 of the Irish Constitution” (2012) 48 Irish Jurist 132. 172 Article 24(1), indent 2 TEU. 173 In relation to which see Articles 5, 150, 156, 168, 171, 173, 181 and 210 TFEU. 174 There is a voluminous literature on the open method of coordination. See for some useful introductions to the subject e.g., I. Maher and D. Hodson, “The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Co-​ordination” (2001) 39 Journal of Common Market Studies 719; and D. Ashiagbor, “Soft Harmonisation: The Open Method of Coordination in the European Employment Strategy” (2004) 10 European Public Law 305.

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175 In relation to which, see Articles 152 and 155 TFEU. See generally in relation to these areas, G. Barrett, “Juggling between Hard Law and Soft Law:  Differing Models of National Parliamentary Involvement in EU Affairs” in D. Jancic, National Parliaments after the Lisbon Treaty and the Euro Crisis:  Resilience or Resignation? (Oxford University Press, 2017). 176 See B. Tonra, “Democratic Oversight over the Irish Government in the Field of the Common Foreign and Security Policy”, Chapter 9 in Barrett (ed.), National Parliaments and the European Union. 177 See Government for National Recovery 2011–​2016 at 24. 178 This was a Committee of Inquiry set up under the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013. See Report of the Joint Committee of Inquiry into the Banking Crisis (January 2016). 179 See for a discussion of the Forum’s work, T.  Brown, “Ireland’s National Forum on Europe: Helping to Make Up for the Democratic Deficit?”, Chapter 12 in Barrett (ed.), National Parliaments and the European Union. 180 Minister for Foreign Affairs and Tánaiste Eamon Gilmore TD, speaking in Second Stage Seanad debate on the EU Scrutiny and Transparency in Government Bill 2013. (See Vol. 227 Seanad Debates (24 October 2013) at 164.) 181 See the pessimistic observations made by Eric Byrne TD to the author regarding the implications for Oireachtas scrutiny in European affairs of the clientelist nature of Irish politics (Joint Committee on EU Affairs, 10 October 2013)  at 10 of the report of proceedings.

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336

Index adjournment debates 252, 254 Agreed Programme for Government (2007) 117 Allied Irish Banks 147 Amsterdam 2, 3, 8, 10, 11, 15, 18, 21, 22, 23, 26, 27, 29, 50, 104, 167, 168 Anglo Irish Bank 147 Anglo Irish Bank Corporation Act 2009 147 Annual Report on Relations between the European Commission and National Parliaments 39, 57 Assemblée nationale 1, 13, 42, 86, 89, 233 Assemblei 233 Assessment of Current Structures for Oireachtas Scrutiny of EU Affairs 158, 282, 298, 300, 305 Assizes of Rome 6, 7, 18 attendance (at Committees etc.) 95, 106, 124, 154, 203, 206, 207, 220 bailout 146, 147, 148, 149, 207 Bank of Ireland 147 banking crisis 146, 154 Barroso initiative 28, 39, 232, 304 Berlin declaration 12, 19 bicameral parliaments 32, 89, 91 Blair, Tony 11, 18 Blue Star Programme 156, 157 Brexit 38, 39, 207, 302 Bruton, John 13, 129, 130, 213, 291, 303 Brussels Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund 187 Bundesrat 54, 90, 91, 233 Bundestag 40, 42, 59, 86, 162, 305 Bundesverfassungsgericht 47

Camera Deputatilor 233 Ceann Comhairle 160, 161, 163, 165, 247, 258, 289 CFSP see Common Foreign and Security Policy Chambre des représentants 54, 91 Chirac, Jacques 11 co-​decision 2, 10, 26, 34, 35, 46, 52, 159, 163, 165, 166, 194, 196 Collins, Gerry 128 Common Foreign and Security Policy (CFSP) 9, 18, 28, 46, 53, 56, 58, 84, 154, 161, 217, 227, 303 Common Security and Defence Policy 28, 51, 56, 154 Communication role of parliament 31,36, 39, 41, 104, 151, 153, 157, 286, 288, 296 Community Patent Convention 186 Conference of Speakers of EU Parliaments 57, 58, 303 Constitution of Ireland 51, 115, 147, 162, 165, 185, 186, 288 Article 15.10 203 Article 29.4.7° 167, 168, 195, 196, 197, 198, 235, 257 Article 29.4.8° 162, 163, 164, 166, 196, 198 Article 29.4.9° 51 Article 29.5.1° 187, 188 Article 29.5.2° 187, 188, 257 Article 46 185 Constitution of Ireland (1922) 112, 113, 114 Constitutional Treaty see Treaty Establishing a Constitution for Europe consultants’ role in writing Oireachtas Committee reports 130, 131

337

Index

Convention on Action against Trafficking in Human Beings 257 Convention on the Future of Europe 3, 7, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 41, 44, 53, 213 European Convention for the Protection of Human Rights and Fundamental Freedoms 51 Working Group I 14, 16, 18 Working Group IV 14, 15, 16, 17, 18, 20 COREPER 15, 16, 90, 291 COSAC 6, 7, 8, 9, 10, 11, 16, 17, 18, 27, 28, 29, 30, 33, 57, 58, 59, 130, 212, 235, 261, 303 COSAC Chairpersons meetings 57 Cosgrave, Liam 115 Council see Council of the European Union Council of Ministers see Council of the European Union Council of the European Union 5, 8, 9, 13, 15, 16, 17, 20, 22–33, 35, 37, 38, 39, 43, 44, 46, 47, 49, 50, 51, 52, 83, 84, 85, 90, 96, 104, 105, 129, 131, 133, 156, 159, 161, 162, 164, 166, 167, 190, 191, 196, 197, 203, 204, 205, 207, 208, 210, 231, 232, 291, 300, 301, 306 Council Presidency 6, 57, 154, 165, 207, 210, 261 Foreign Affairs Council 208, 231 General Affairs Council 208, 210, 231, 291, 292 Cowen, Brian 152 Credit Institutions (Eligible Liabilities Guarantee) Scheme 2009 147 Credit Institutions (Financial Support) Act 2008 147 Creighton, Lucinda 205, 281, 287 Creighton Sub-​Committee, see Joint Sub-​ Committee on the Review of the Role of the Oireachtas in European Affairs Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 187 Criminal Justice (Mutual Assistance) (Amendment) Act 2015 187 Dáil Select Committee on European Affairs 129 Dáil Select Committee on Justice, Defence and Equality 238

337

Dáil Standing Committee on Procedure and Privileges 116 Danish Parliament see Folketing de Rossa, Prionsias 128 de Valera, Eamon 114 debates in Oireachtas 252 debates on motions 252, 257 debates on the order of business 252 Declaration (No. 13) on the Role of National Parliaments in the European Union 6 Declaration (No. 14) on the Conference of the Parliaments 6, 7 Declaration (No. 23) on the Future of the Union 11 Declaration (No. 56) by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice 197 Department of Foreign Affairs 106, 217 Department of Transport, Tourism and Sport 301 Directive 2013/​30/​EU on safety of offshore oil and gas operations 187 Donohoe, Paschal 205, 212, 281, 282 Donohue Sub-​Committee see Joint Sub-​ Committee on Ireland’s Future in the European Union Doyle, Andrew 223 Duff, Andrew 36 Dukes, Alan 128 Eduskunta 40, 96, 304, 305 EFSF see European Financial Stability Facility Eleventh Amendment of the Constitution Act 1992 186 enlargement 10, 93, 128 EU security and defence 128 EU Speakers Conference 59 EU/​IMF Programme of Financial Support for Ireland 148 EUR-​Lex 297 Euro Plus Pact 147, 150 Eurogroup 56, 150 Eurojust 20, 50, 187 Europe Day 153, 157, 261, 262, 294 Europe Week 157 European Affairs and European Scrutiny Committee 293

338

338

Index

European Banking Union 147 European Central Bank 22–24, 30–33, 56 European Coal and Steel Community Common Assembly 3 European Coal and Steel Community Treaty 2 Article 21 4 European Commission 6, 7, 8, 9, 13, 16, 18, 22, 23, 25–37, 39, 40, 41, 43–46, 49, 50, 53, 54, 57, 58, 85, 95, 105, 123, 129, 130, 131, 132, 148, 151, 153, 154, 157, 159, 160, 164, 179, 180, 191, 192, 193, 194, 207, 213, 220, 221, 223, 224, 225, 227, 232, 235, 238, 261, 262, 285, 290, 292, 296, 300, 304, 305, 306, 311, 312 Work Programme 207, 227, 261, 262, 290, 300, 306 European Communities (Amendment) Act 1973 120 European Communities (Amendment) Act 2012 186, 195 European Communities (Amendment) Bill 2012 149 European Communities (Confirmation of Regulations) Act 1973 120 European Communities Act 1972 119, 184, 186, 188, 195, 200, 301, 307 Section 2(1) 186, 188 Section 3 188 Section 3(1) 188 Section 3(2) 188 Section 3A 189 Section 5 119, 200 European Communities Act 2007 179, 307 European Council 7, 11, 13, 19, 20, 23, 26, 38, 39, 43–47, 51, 60, 104, 105, 133, 150, 151, 155, 156, 161, 162, 163, 165, 166, 167, 200, 207, 213, 240, 258 European Council Decision of 25 March 2011 amending Article 136 TFEU 149, 187 European Court of Auditors 16, 26, 193 European Court of Justice 21–25, 30–33, 35, 41, 42, 52, 86, 159, 160, 161, 193, 196 European Defence Community 1, 13 European Economic Community 4 European Financial Stability Facility 147, 148, 207 European Financial Stability Mechanism 147

European Investment Bank 22, 23, 24, 30, 31, 32, 33 European Movement Ireland 157 European Parliament 1–7, 9, 10, 13, 15–18, 20–33, 35, 43, 44, 45, 48, 49, 51, 52, 57–60, 82, 83, 84, 93, 104, 105, 129, 153, 154, 157, 159, 160, 166, 179, 186, 187, 191, 193, 194, 221, 240, 260, 261, 287, 293, 294, 296, 303, 312 Committee on Civil Liberties, Justice and Home Affairs 59 Directorate for Relations with National Parliaments 58 European Parliamentary Week 58, 293, 303 European Political Community 13 European Public Prosecutor’s Office 34, 165, 166, 198 European Semester for Economic Policy Coordination 58 European Stability Mechanism 45, 147, 149, 186, 187 European Stability Mechanism Act 2012 149 European Union (Scrutiny) Act 2002 132, 213, 290, 300 Section 2(1) 132, 213, 217 Section 2(2) 217 Section 2(5) 133 European Union Act 2009 146, 159, 162, 164, 165, 288, 303 Section 7(1)(a) 163 Section 7(1)(b) 163 Section 7(3) 159 Section 7(4) 42, 161 Europol 20, 50, 51, 58, 303 Eurozone 56, 146, 147, 149, 150, 152, 303 Eurozone Summits 56, 150 ex ante briefings of joint Oireachtas committees 231 ex ante statements by the Taoiseach on European Council meetings 155 ex post briefings by the Taoiseach on European Council meetings 156, 258 executive federalism 82, 108, 122 Fianna Fáil 114–117, 127, 132, 152, 209, 212, 287 Finance (Miscellaneous Provisions) Act 2015 187

339

Index

Financial Emergency Measures in the Public Interest Act 2009 148 Financial Emergency Measures in the Public Interest (No. 2) Act 2009 148 Financial Emergency Measures in the Public Interest Act 2013 148 Fine Gael 115, 116, 117, 121, 125, 152, 155, 205, 212, 223, 259, 287 Fiscal Responsibility Act 2012 149 Fiscal Stability Treaty 60, 147, 149, 186 Fischer, Joschka 11, 18 FitzGerald, Garret 116, 125 Five Presidents’ Report 60, 150 flexibility clause 49 Folketing 40, 56, 95, 296, 304, 305 Gilmore, Eamon 154, 156, 158, 190, 312 Government for National Recovery 2011–​2016 152, 157, 232, 261, 262, 289 Green Party 117, 152, 287 Halligan, Brendan 291 Hanafin, John 212 Haughey, Charles 116, 123, 125 Hayes, Maurice 311 Herzog, Roman 180 House of Commons 3, 21, 36, 59, 284 House of Lords 57, 90, 95, 210, 233 Houses of the Oireachtas (Laying of Documents) Act 1966 289 Houses of the Oireachtas Commission 109 IBRC bank 149 information notes 133, 216, 217, 230, 290, 299 input legitimacy 82 Institute of European Affairs 127 Interdepartmental Coordinating Committee on EU Affairs 295 Interparliamentary Conference on Stability, Economic Coordination and Governance in the European Union 58 Interparliamentary European Union Information Exchange 27, 28, 33, 59, 297, 303 IPEX see Interparliamentary European Union Information Exchange Iqbal v. Minister for Justice 197

339

Irish Bank Resolution Corporation Act 2013 149 Irish Fiscal Advisory Council 149 Joint Oireachtas Committee of Inquiry into the Banking Crisis 312 Joint Oireachtas Committee on Agriculture, Fisheries and Food 221, 223 Joint Oireachtas Committee on Climate Change and Energy Security 220, 223 Joint Oireachtas Committee on Communications, Energy and Natural Resources 221 Joint Oireachtas Committee on Communications, Marine and Natural Resources 221 Joint Oireachtas Committee on Education and Science 221 Joint Oireachtas Committee on Enterprise, Trade and Innovation 223, 224 Joint Oireachtas Committee on European Affairs 127, 129, 131, 153, 190, 201, 202, 204, 205, 208, 210, 211, 212, 213, 216, 219, 223, 225, 231, 287, 290, 292, 294, 295, 296, 297, 299, 302 Work Programme 157, 194 Joint Oireachtas Committee on European Scrutiny 202, 204, 216–221, 287, 289, 290, 292, 294, 302 Joint Oireachtas Committee on European Union Affairs 202, 205, 292, 298–​301 Joint Oireachtas Committee on European Union Scrutiny 216, 219, 220, 221, 223, 225 Joint Oireachtas Committee on Finance and the Public Service 221, 223 Joint Oireachtas Committee on Finance, Public Expenditure and Reform 225 Joint Oireachtas Committee on Foreign Affairs 116, 122, 127, 128, 129, 202, 204, 208, 224 Joint Oireachtas Committee on Foreign Affairs and Trade 154, 225 Joint Oireachtas Committee on Jobs, Enterprise and Innovation 225, 235 Joint Oireachtas Committee on Jobs, Social Protection and Education 225 Joint Oireachtas Committee on Justice, Defence and Equality 235, 238

340

340

Index

Joint Oireachtas Committee on Justice, Defence and Women’s Rights 197, 221, 223 Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights 224, 235 Work Programme 224, 235 Joint Oireachtas Committee on Secondary Legislation 128 Joint Oireachtas Committee on the Secondary Legislation of the European Communities 121, 125, 205, 259, 307 Joint Oireachtas Committee on Transport and Communications 225 Joint Parliamentary Scrutiny Group 51, 58, 303 Joint Sub-​Committee on the Review of the Role of the Oireachtas in European Affairs 152, 199, 200, 206, 212, 281–​282, 285, 287–​297, 298, 300, 301, 302, 306 Joint Sub-​Committee on Ireland’s Future in the European Union 213, 281, 282–​286, 287, 292, 296, 306 Justice and home affairs 10, 17, 49, 50, 159, 165, 197, 198, 217, 225, 235 Kamra tad-​Deputati 233 Kenny, Enda 156 Labour party 115, 116, 117, 121, 125, 127, 152, 155, 205, 259, 287 Laeken Declaration 13 leaders’ questions 246 Lenihan, Brian 128 Library and Research Service 207, 260, 297 Management Advisory Committee of the Houses 106 mandate 12, 16, 19, 25, 38, 88, 89, 96, 106, 109, 133, 218, 284, 286, 292 Méndez de Vigo, Íñigo 14 MEPs 6, 122, 128, 154, 240, 261, 286, 293, 302 Minister for Foreign Affairs 155, 190, 191, 208, 291, 294, 306 Minister of State for European Affairs 155, 157, 191, 208, 259, 261, 292, 296, 306 monitoring scrutiny 87, 107, 204 Monti II regulation 34

National Declaration by Ireland 200 National Forum on Europe 157, 311 Nationalrat 56, 95, 232 Nicolai, Atzo 180 Oireachtas Committees’ EU Scrutiny Work Programme 194 Oireachtas EU Coordination Unit 260 Oireachtas National Parliament Office 260 open method of coordination 53, 56, 288, 311 Opposition 107, 113, 114, 115, 155, 179, 204, 239, 240, 246, 258, 259, 286, 287 orange card 34, 35, 37, 39 Organisation for Economic Co-​operation and Development 145 ordinary revision procedure 43, 44, 45 output legitimacy 82, 302 Owen, Nora 128 parliamentary questions 88, 239, 240 Parliamentary Steering Group on EU Affairs 259, 294, 299 Petroleum (Exploration And Extraction) Safety Act 2015 187 plenary session of Houses 199, 239, 290 political dialogue 25, 28, 31, 33, 36, 39, 40, 41, 52, 56, 57, 191, 192, 193, 223, 232, 235, 238, 300, 303, 304, 305 political scrutiny 87, 107, 204 Posted Workers Directive 34 Prelex 297 priority questions 247 private notice questions 247 Progressive Democrats 117, 132, 209 Protocol Amending the Protocol on Transitional Provisions 186 Protocol (No. 1) on the Role of National Parliaments in the European Union 22–27, 29, 30, 32, 193 Article 3 24 Article 9 27, 28, 57 Article 10 27, 29 Preamble 26 Title I 27 Title II 27 Protocol (No. 2) on the Application of the Principles of Subsidiarity and

341

Index

Proportionality 20, 25, 28, 29, 32, 34, 41, 42, 50, 86, 87, 159, 160, 161, 193 Article 6 24, 31, 159 Article 7 31, 32 Article 7(1) 32 Article 7(2) 32, 33, 39 Article 7(3) 39 Article 8 41, 42, 86, 161 Protocol (No. 13) on the Role of National Parliaments in the European Union 8 Protocol (No. 19) on the Schengen Acquis Integrated into the Framework of the European Union 196 Protocol (No. 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice 196, 257 Article 8 197 Protocol on the Concerns of the Irish People on the Treaty of Lisbon 187 Public Accounts Committee 115, 203 questions for written answer 249 questions to ministers 245 questions to the Taoiseach 240 Rainbow Coalition 117 rapporteur system 59, 212, 223, 294, 300 red card 34, 38, 39 regulatory impact assessments 153, 189, 285, 294, 299 Report of theWorking Group On Seanad Reform 108 Report On Reform Of The Common Agricultural Policy Post-​2013 223 Report on Seanad Reform 302 Report to the Oireachtas Joint Committee on European Affairs from the Advisory Group on the Role of the European Court of Auditors 213 Reynolds, Albert 127 Riksdag 96 Robinson, Mary 124 Rogers, John 132 Schengen Convention 167 Schengen Implementation Convention 167 scrutiny priorities 212, 299, 300 scrutiny reserve 25, 88, 96, 109, 133, 152, 218, 284, 285, 292, 297, 298, 300, 306

341

Seanad 41, 90, 106, 108, 112, 118, 119, 120, 122, 125, 146, 149, 158, 159, 160, 161, 163, 165, 190, 201, 202, 206, 224, 231, 239, 259, 260, 283, 286, 289, 294, 295, 299, 301, 302, 306 Seanad Standing Orders 146, 160, 161, 163, 286, 289 Sectoral committees 38, 94, 95, 96, 133, 154, 190, 191, 192, 216, 217, 218, 219, 220, 221, 223, 224, 231, 260, 290, 292, 293, 294, 297, 298, 300, 302, 305, 306, 312 Sejm 232 select committees 202 Sénat 59, 233 Senato 233 Seville Declaration 200 simplified revision procedure 45, 46, 47, 50, 163, 164 Single Resolution Mechanism 59, 147 Single Supervisory Mechanism 147 ‘six pack’ legislation 150 social dialogue 56, 288, 311 specialised revision procedure 47 statements in the Oireachtas 95, 155, 156, 240, 252, 258, 259, 261, 291, 307 Stuart, Gisela 14 Study of Parliament Group 119 Sub-​Committees see Joint Sub-​Committees subsidiarity check 227, 300 Taoiseach 13, 111, 112, 114, 123, 130, 152, 155, 156, 157, 213, 239, 240, 246, 258, 259, 261, 291, 299, 300 Third Money Laundering Directive 187 Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 117, 149 Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Act 2012 149, 186 Thirty-​second Amendment of the Constitution Bill 2013 149, 301 Thirty-​second Amendment of the Constitution (Abolition of Seanad Éireann) Bill 2013 260

342

342

Index

Transport and Communications 158, 190, 225 Treaty Establishing a Constitution for Europe 7, 12, 15–22, 25, 27, 29, 31–34, 39, 41, 44, 180 Treaty Establishing the European Economic Community 19 Article 138(1) EEC 4, 5 Article 146 EEC 5 Article 236 EEC 4–​5 Article 237 EEC 5 Treaty of Lisbon 2, 4, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 27, 28, 29, 34, 37, 38, 39, 41, 43, 44, 45, 47, 48, 50, 52, 53, 81, 84, 86, 90, 104, 145, 146, 158, 159, 161, 162, 166, 167, 186, 187, 188, 192–196, 198, 204, 205, 282, 287, 288, 289, 296, 303, 311, 312 Treaty of Maastricht see Treaty on European Union Treaty of Nice 5, 10, 11, 12, 13, 47, 104, 130, 131, 132, 168, 191, 200, 204 Referendum on Treaty of Nice 131, 132, 191 Treaty of Rome see Treaty Establishing the European Economic Community Treaty on European Union 2, 3, 6, 7, 8, 57, 93, 104, 123, 127, 146, 147, 180 Article 2 TEU 48 Article 5.3 TEU 29, 30 Article 10 TEU 20, 21, 29, 83 Article 12 TEU, 20, 21, 22 Article 20 TEU, 195 Article 42 TEU 51 Article 42.2 TEU 51 Article 48 TEU 43, 162, 194 Article 48.3 TEU 14, 44 Article 48.4 TEU 44 Article 48.6 TEU 45 Article 48.7 TEU 46, 47, 161, 162, 163, 194 Article 49 TEU 48, 194

Article 50 TEU 48 Title V TEU 46, 161 Treaty on the Functioning of the European Union Article 12 TFEU 2 Article 25 TFEU, 47 Article 69 TFEU 29, 50 Article 70 TFEU 20, 50 Article 71 TFEU 50 Article 81.3 TFEU 46, 47, 50, 164 Article 82.2 TFEU 165, 166, 198 Article 83.1 TFEU 166, 198 Article 85 TFEU 50 Article 86 TFEU 166 Article 86.1 TFEU 166, 198 Article 86.4 TFEU 166, 198 Article 88 TFEU 50, 58 Article 218(8) TFEU, 51 Article 223 TFEU 52 Article 262 TFEU 52 Article 263 TFEU 41, 42, 86 Article 311 TFEU 52 Article 352 TFEU 49 Title V of Part Three TFEU 196 troika 148 Tweede Kamer 94 Twenty-​Eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009 159, 186 Twenty-​Ninth Amendment of the Constitution Act 2011 148 ‘two pack’ legislation 150 unicameral legislatures 22, 89 United Nations 201 Varadkar, Leo 190, 295 Westminster model of parliamentary government 108, 110, 113, 114, 115, 118 yellow card 32, 33, 34, 35, 39, 59, 160