I welcome both speakers to the committee and thank them for their presentation.  Like others, I welcome their expressed support for the treaty, but do their members and employees hold that position or what are the levels of supports among their members?  A number of recent polls on the treaty indicate that there are high levels of “Don’t knows”, that is, people who do not feel well informed about the treaty, but also certain surprises.  There was a poll on the membership of various political parties and I was surprised to see the levels of support among members of the Fine Gael Party.  In a party that would traditionally have been closely linked with the farming community, the levels of support were not as high as one might have expected.  What might be the level of support among members of ICOS? 

Will Mr. Gibbons -Pádraig Gibbons, President ICOS- and Ms McGinley –Carol McGinley, EU affairs officer ICOS- indicate what, if any, are the issues of concern that might arise for their organisation’s members in order that reassurance might be provided?  I would be grateful if they could clarify the position in respect of the matters I have raised.

Reply by Pádraig Gibbons
Senator Déirdre de Búrca asked how we know our workers support the stance ICOS is taking.  Our organisation tries to be as democratic as possible and we listen to the opinions of all our workers.  One cannot expect 100% agreement in any situation but, in general, the co-operative movement and the people who work in it realise that the treaty is good for Ireland, for jobs and for their future in Ireland. 

I would be very surprised if a majority was against it.  I am happy with that.  There are probably individuals within our organisation with a different opinion, but democracy rules there, just as it does everywhere else.  There will be some problems, but no more than in any other walk of life.  These will depend on what happens and whether the European Union pulls the plug on something, which people might use as an excuse to go against it.  In general, we feel it is right to support the treaty and that is what we will recommend.  

Presentation from Irish Creamery Milk Association by its President Mr Jackie Cahill

I am grateful for the invitation to address the committee on the important matter of the Lisbon treaty.  In its letter of invitation, the committee asked us to deal with those aspects of the Lisbon treaty, which I will hereafter refer to as the reform treaty, that are of particular importance to us, as farmers, and I intend to do so.  Equally, however, there are overarching and peripheral matters to consider if we are to really examine the likely impact of the reform treaty on Ireland and the agrifood sector in particular. 

The ICMSA has not yet made a formal decision regarding the reform treaty but, as the committee knows, in the past when there have been referenda on Europe, the ICMSA recommended a “Yes” vote with the approval of its national council.  Like other organisations, and reflecting a general trend among the Irish population, there is a growing level of concern, to put it mildly, about developments at European level.  I stress that expressing concerns and holding strong views about the direction of Europe are factors not to be misinterpreted.  It should not be assumed, for example, that we are reluctant Europeans.

 

The concerns to which I refer are twofold.  First, they stem from the lack of practical information about the ultimate direction and the process of the EU.  Second, there is the growing complexity of the European Union both in terms of its institutional make-up and its ever-increasing impact on businesses as well as almost every single aspect of economic and social policy, and law. 

The reform treaty is not a constitution.  We believe it was wise to step back from a constitution for Europe and to focus instead on member states working together and pooling their sovereignty for this purpose.  The reform treaty makes it quite clear that the EU is based on the principle of conferred powers, which guarantees that the Union cannot extend this power or competence at the expense of member states without their prior agreement.  It is important, nonetheless, to point out that the EU is to be established as a legal entity in its own right, capable of entering into international agreements on behalf of member states.  With reference to the agribusiness sector and the importance of the WTO agreement, there may be no real change in the sense that the European Community is a legal entity capable of binding all member states at the WTO.  I will return to this point later. 

The establishment of the Union as a legal entity and the streamlining of other matters, for example, the three separate pillars, is a welcome development not only in terms of efficiency of operation but also in terms of ease of understanding.  One of the problems, despite all the modern means of communication, is that European structures are very complicated and are changing significantly.  This change is ongoing and evolving.  The resultant sense of confusion leads to suspicion so where simplification can be achieved, it should be aspired to.  Greater understanding and certainty would help to allay the fears that we are transferring our independence and sovereignty. 

A revision of the treaty includes the possibility to adopt a treaty that is a European Community treaty, as renamed, and a treaty of the European Union.  The Attorney General has advised the Government that a constitutional referendum is required for Ireland to ratify the reform treaty.  It is not clear whether the inclusion of articles in the reform treaty – the so-called bridging clauses – to extend the areas covered by a qualified majority or the flexibility clauses to extend the European Union’s competence could give rise to the treaty being modified in the future without reference to the Irish people.  While a somewhat similar article exists in the European treaty, there is some doubt about the extent the amendment will have to reach before the principle laid down in the Crotty case would require the issue to be put to the Irish people by way of referendum. 

We believe the Oireachtas should clarify this point to bring more certainty to the matter.  There would be nothing to stop the Irish Constitution having a specific provision that Ireland could not agree to any change to the treaty without reference to the Irish people in the form of a future referendum.  While I fully accept that these self-amending clauses require unanimity, the issue is whether it falls within the power of the Government of the day or the people to exercise that choice. 

With regard to the decision of the Government to opt out of the provisions on justice, this was a wise and practical decision given our common law position and the fact that Britain has also decided to opt out.  Equally, Ireland may opt in at any time on these matters.  Clearly, these are not academic reasons but ones that can affect every single citizen, both in private life and in business. 

Overall, faced with a choice, we believe the Government has made the correct decision.  There is no doubt there will be fundamental change in the way decisions are taken by the EU following the adoption of the treaty.  While there are some minor changes in the level of power being transferred from member states to the EU, there are considerable changes in the way power will be allocated among the various EU institutions. 

The transfer of power away from the Council of Ministers is a matter that requires considerable thought.  We must examine what can be done to ensure these changes, which are demanded in the name of efficiency, are counterbalanced as far as Ireland’s interests are concerned. 

The increased power of the European Parliament, particularly in respect of the budget, could have implications for small states.  Equally, the double majority rule in regard to the number of member states and the proportion of the overall EU population is a factor that might work against us.  While this particular measure may be more democratic, it is not a one-way advantage for Ireland and other smaller member states.  The agreement reached in Greece in 1994, which is to last until 2014 or 2017, will, in the early stages, protect vital interests that may otherwise be ignored. 

The extension of the legislative co-decision procedure involving the Council of Ministers and the European Parliament, including matters relating to the Common Agricultural Policy will give the Parliament power comparable to that of the Council of Ministers.  The same will apply in regard to the EU budget, where the Parliament’s powers of approval will be similar to those of the Council of Ministers. 

The principle of conferred powers is critical.  From a practical point of view, however, the statement about the three categories of competence is also important and will have practical implications, particularly for domestic policies and the role of the Oireachtas.  While the reform treaty does not grant new and exclusive competence to the EU, there is, for the first time, a clear expression of the respective roles of the Union and the member states.  Included within the Union’s exclusive competence is the conclusion of international agreements in accordance with its mandate.  This is crucially important with reference to the World Trade Organisation. 

With regard to shared competence between the Union and the member states, the two headings of particular interest to us are agriculture and the environment.  The days of exclusive reliance on the CAP are over; in reality, they were over long before the reform treaty.  We are fully supportive of the selection of those areas where member states retain exclusive competence, for example, human health care, culture and education. 

Arising directly from the above categorisation is the question of subsidiarity.  The Union must not take unto itself more power than is necessary to undertake the responsibilities it has been given under the various treaties.  The principle of subsidiarity has invariably been ignored, but we should recognise that the fault rests not only with the EU institutions but also with national parliaments, including the Oireachtas.  The provision in the treaty to afford an active role to national parliaments is a necessary and welcome development, but it does not encompass all that the Oireachtas can or should do.  The new role for national parliaments must reduce the so-called democratic deficit.  Criticism of the EU in this regard is sometimes misdirected.  While EU institutions must take some of the blame, the Oireachtas has not, with respect to the parliamentarians present, always lived up to its own responsibilities. 

A consideration of how the Oireachtas has dealt with applying EU legislation in the State is illuminating, beginning with the European Communities Act 1972.  This originally provided that ministerial regulations implementing new law must be confirmed by the Dáil.  Although this was changed in 1973, the Act did not, until last year, give the Minister authority to create indictable offences by way of ministerial regulation.  Over time, the Oireachtas has given enormous and uncalled for powers to Ministers and civil servants to introduce far-reaching legislation giving effect to EU directives.  The Supreme Court judgment in the case of Maher v. the Minister for Agriculture and Food makes clear that where a statutory instrument introduces radical change, there is no constitutional objection to the Oireachtas dealing with the relevant EU matters by way of legislation.  Moreover, some legal authorities are of the view that the Oireachtas cannot, under the Constitution, delegate law-making to Ministers in the context of European law where it is necessary to do so. 

The Oireachtas can and must regain its law-making power in regard to implementing EU legislation in accordance with what is set down in the Constitution.  A determination to protect this law-making role is in perfect harmony with its new role under the reform treaty. 

This involves an early warning mechanism on legislation, which has been proposed by the Commission.  The Oireachtas on its own or in conjunction with other national parliaments will be able to force the Commission to review proposals.  Equally, the Oireachtas for the first time will have the right to take an action to the European Court of Justice when it considers its capacity and position within the structure laid down by the European treaties is being infringed, particularly in respect of subsidiarity and law-making.  The decision to establish an Oireachtas Joint Committee on European Scrutiny is a welcome development and has the potential to improve substantially parliamentary oversight by the Oireachtas in respect of the existing treaties and the reform treaty. 

I refer to European farming and the agrisector.  Ireland’s membership of the European Union undoubtedly has given the Irish agrifood sector the market opportunities and supports that have resulted in its modernisation beyond all recognition.  Equally, it has given us the right of access to the most rewarding markets in the world, as well as a level of opportunity unknown to generations of farmers prior to the advent of the Common Market.  However such opportunities constitute a right of membership and while we are grateful for them, this cannot mean we are unable to express concerns regarding future or likely trends or that we are somehow forbidden to criticise constructively the manner in which the EU implements or decides policy.  Most of the negative attitudes that obtain in the farming sector towards the EU undoubtedly arise from the raft of inspections, which is perceived as being far too restrictive and bureaucratic, while at the same time a blatant double standard is operated by the European Commission regarding food imports. 

Some of the frustrations felt by farmers spring from the perception that member states have little control in such matters and the Commission demands strict adherence to its laws without taking into account their practical implication at ground level, as well as variation among member states.  The importation of beef into the European Union from Brazil is a textbook example of the double standards that breed resignation and, subsequently, contempt. 

While some improvement has taken place with regard to the necessary controls in Brazil, I am not confident that the European Commission will demand the same level of standards in Brazil as it insists on and requires of European farmers.  In addition to being involved in a double standard with regard to food safety, the Commission is willing to import food produced under conditions that it would not dream of tolerating in Europe.  This state of affairs cannot continue and is bringing into question the credibility of all European institutions.  At present, the ICMSA is finalising a formal complaint to the European Ombudsman against the European Commission arising from its failure to observe proper standards on beef imports from Brazil.  To some extent, this illustrates two issues.  First, it demonstrates the growing tendency of the Commission to act without regard to criticism from and concerns of member states.  Second, it shows that a means exists within the European structure by which an organisation such as the ICMSA, in conjunction with other organisations, can seek redress in the form of a ruling from the European Ombudsman. 

Another area of importance concerns the setting of rules of trade for Irish and European farmers under the World Trade Organisation.  In the present context, it serves to demonstrate the need to keep the European Commission under continuous scrutiny.  The Commission is required to negotiate on a strict mandate at the WTO talks on behalf of member states and the power that has been given to Commissioner Mandelson in the WTO negotiations is far-reaching and unique.  Member states such as Ireland and France have argued consistently that the Commission has gone beyond its mandate to an extent that necessitated the calling of a special Council meeting to attempt to rein in the Commissioner and demand regular reporting.  Given the crucial importance of the WTO, it is vital to avoid a repetition of the Commission’s arrogant refusal to be accountable. European institutions should be forced, if necessary, to operate in accordance with the treaties, the rule of law and the political direction given by the governments of the member states. 

Detailed and restrictive rules on the environment, some of which do not stand up to scientific scrutiny, also are a source of growing dissatisfaction for farmers.  They face the unfortunate combination of rules drawn up by a purely bureaucratic entity, the Commission, with very little oversight by the European Council, which are then transposed into Irish law by Ministers and the Civil Service and are implemented by a multitude of inspection systems.  This is unfortunate and the perception at present is that the Oireachtas has little control of such matters.  I argue strongly that this cannot continue and that greater accountability would ensure the taking into account of legitimate interests and the achievement of more effective control of the environment at a lower cost and with less fuss. 

The reform treaty is not a simple document.  It brings about major changes in a number of key areas and a multitude of minor changes in other areas.  While it simplifies certain procedures, it adds other layers of complexity to an already complex structure.  The reality is that the treaty in its current form will not be modified.   

The most productive focus would be to concentrate on how we can work the reform treaty to our advantage and offset its downsides to the maximum degree possible.  A more proactive approach by the Oireachtas and the Joint

Committee on European Affairs and the Joint Committee on European Scrutiny would substantially remedy the democratic deficit. 

Reply from Senator Déirdre de Búrca to  ICMSA presentation
I thank the representative who spoke on behalf of the ICMSA.  It was a very interesting and wide-ranging presentation.  I agree with Deputy Treacy that some of the interpretations of the treaty’s provisions were a little conservative.  It all depends on how one approaches the treaty.  There are always concerns when changes are made to institutional arrangements that they may not work to the advantage, for example, of small countries like Ireland.  However, there is every reason to believe that these new institutional arrangements will ensure that Ireland’s influence within the European Union will continue to be as strong and effective as it has been to date.   

An interesting point was made regarding the role of the Oireachtas.  It is important to point out that there are steps the Oireachtas could take, in terms of scrutinising the decision making of Ministers within the Council of Ministers, well outside of the treaty.  It is not necessary for any treaty to be ratified for the Government or the Oireachtas to make a decision that it, like other parliaments, including the Danish, Finnish and Austrian Parliaments, should have the power to issue binding opinions on which way Ministers should vote on the Council of Ministers and to discuss and debate fully forthcoming decisions of the Council of Ministers in various policy areas.  That is something that the Oireachtas could decide to do without any Lisbon treaty.  The point raised by the representatives was very relevant. 

I am also delighted that the witnesses have welcomed the new powers of scrutiny and oversight by the national parliaments and the opportunity for them to show a yellow card, so to speak, if they are not happy that the principle of subsidiarity is being fully respected.  However, stronger rules for national parliaments can be introduced by the Governments of individual member states without looking to the European institutional arrangements to bring that about.   

Reference was made to the European Commission and concern was expressed about the fact that Ireland will no longer have a Commissioner. In that regard, I echo what others have said and point to the fact that there will be strict equality between all member states, including the larger states, which is a difficult position for them to take, namely, to have gone from a position where they had two Commissioners to one, and now to a position where it will be absolute equality and where they will not have a Commissioner for a five year period. 

The Commission is supposed to look after the general Community interest. The Commissioners are not supposed to represent or promote the interests of the individual member state from which they come. 

It has always been useful to have somebody who understands the particular circumstances of individual member states.  One of the issues about which I would have questions is that of the cabinets because it has always been helpful to individual member states to have been able to access permanent representatives within the institutions of the European Union, particularly the Commission, and that those officials would understand and have that connection with the individual member states.  I am sure it will continue to be the case that although the Commissioners will not represent every one of the 27 member states, there will be permanent officials and members of cabinets who will reflect linkages with all of the member states of the European Union. 

Senator Quinn also asked whether Ireland would be better off outside the European Union. That is really the question that must be considered by any organisation encouraging its members to support the treaty or not. An organisation must consider how Ireland would survive and promote its interests, for instance, within the World Trade Organisation or in other fora, as an independent and sovereign state as opposed to being a member of a trading bloc such as the European Union. Whatever one’s concerns about some of the kinds of decisions that appear to be coming out of the World Trade Organisation, it seems that Ireland can only be better off as a member of a stronger trading bloc than on its own. Perhaps we might get our guests’ response to that. 

I thank the representatives of the ICMSA for their presentation.  I hope they decide to recommend to their members that they should support the treaty because, on balance, it is a good treaty which will be in the interests of the agricultural community in Ireland.  

The Irish people are very capable of making a rational decision if they are provided with the necessary information.  This also applies to the reform treaty.  It would be a mistake and a disservice to say that the treaty is all bad or all good.  However, political parties in Ireland have a responsibility to fully explain the reform treaty and its ramifications for the Irish people.  The challenge will be to get the people who are inclined to vote “Yes” to come out and do so.  The referendum should not be lost to the usual groups in the anti-everything lobby.   

While the referendum commission will, no doubt, set out the case for and against the treaty, as it has done in the past, the Oireachtas and this committee are to be complimented on their decision to undertake an information and public awareness programme. 

 

Filed under:
Joint Committee on European Affairs by Deirdre