In attendance: Ms Mary Lou McDonald, MEP, and Mr. Gay Mitchell, MEP. Senator Déirdre de Búrca:   I welcome both speakers to the sub-committee today and thank them for their contributions. Both touch on the issue of Ireland’s influence within the European Union and perhaps they might give us some concrete examples of occasions in the past where, because of its standing in the EU, Ireland was able to promote its own interests or particular policy positions.

The second issue refers to Dr. Dorr’s point about the EU being a Union of states and peoples. I certainly agree. The EU over the past 15 years has been largely a Union of states. I am not so sure as regards the Union of peoples and that is where the challenge lies in terms of trying to engage the citizens of Europe. Mr. Byrne mentioned the low levels of knowledge here about EU institutions. We have had several referendums in Ireland, so we have had to go to the people, consult them and inform them. One can only imagine what the levels of information might be like in other member states where parliamentary ratification has been the mode for ratifying various European treaties. Do either speakers believe there is a need for something like a permanent EU information service in each member state to try to provide relevant information to citizens about the European Union, its institutions and how they function?

On the issue of European identity and Europeanisation, it was interesting to learn that Ireland has been identified as one of the most nationally oriented member states. We have a strong attachment to our national identity. One of the useful aspects of the Lisbon treaty was that it set out a concept of European citizenship which complemented rather than competed with national citizenship. Should the European Union establish a cultural programme to help citizens reconcile the idea of a European and national citizenship, in other words, that they can have multiple or dual citizenship?

Mr. Byrne referred to popular ideas about elites running the European Union. Unfortunately, the Commission, with which Mr. Byrne will be familiar, is often viewed as exemplifying the idea that unelected bureaucrats run the EU and make decisions which are then imposed on the citizens of Europe. How does he respond to that view? Commissioners are appointed rather than elected and have significant power. Do Mr. Byrne and Dr. Dorr have any suggestions about how the Commission could become more connected to citizens and national parliaments or a little more visible given that Commissioners are regarded as faceless and nameless? With the exception of one or two high profile individuals, few Commissioners are known to citizens. Should the Commission be a little more visible and connected to member states and citizens?

Mr. David Byrne:  On the question of the influence of Ireland in the European Union, two directors-general of the Commission, the leaders of the civil service of the European Union, have been Irish. One of them, Ms Catherine Day, addressed the sub-committee last week. Mr. David O’Sullivan was also a director-general of the European Commission. 

Ireland had a significant influence on the agreement on the constitution for Europe, the precursor to the Lisbon treaty. When the Italian Presidency, which preceded the Irish Presidency, failed to produce an agreement, there was a general concern that the Presidency of a small state such as Ireland would not be able to handle the issue and it would be preferable to leave it for the Dutch, who assumed the Presidency after Ireland, to resolve. The Irish Presidency successfully delivered an agreement. I concur with Noel Dorr that 1 May 2004 was the high point of Ireland’s membership of the European Union. I was present in Áras an Uachtaráin on that occasion and the sense of pride was tremendous.

As regards the contribution I made on various issues and Ireland’s support for extending food safety, I established the European Food Safety Authority on which Ireland had a strong influence. The work I did on tobacco gave impetus to a view in Ireland that it would be positive to move in a similar direction. My work was done for the entire European Union, rather than only on behalf of Ireland.

On the issue of elites in Europe, we expect the institutions of the European Union to follow what might be loosely described as the Westminster model with members of the executive being elected. This model is unique to Ireland and Britain and is not often adopted by other member states where elected members of parliament who are appointed to the government must resign their parliamentary position. The reason is that the separation of powers is taken seriously on the Continent, whereas in Ireland the concept of the separation of powers tends to refer to the separation of the Executive from the Judiciary. On the Continent, the concept also extends to the separation of the legislature from the executive. This notion permeates the institutions of the European Union.

As I indicated, Commissioners are nominated by the elected members of their respective countries and are accountable to the European Parliament in the same way as many national governments in the European Union are accountable to their parliaments. The Commission has vestigial legislative powers. Its legislative role is minor because the legislative bodies of the EU are the European Parliament and the Council of Ministers. The Commission’s principal power is that it has sole right of initiative. The advantage of that is that it is able to hold the ring and is not answerable to any individual member state. If it were otherwise and member states could bring forward legislative proposals, there would be a strong possibility that the powerful member states with large civil services would present ideas without fully taking into account the interests of the smaller member states. To that extent, we must understand the role of the European Commission before it can be criticised for it being unelected and so on. It is not intended that it be elected and it is better it is not, for the reasons I have identified. However, with regard to whether the Commissioners should be more visible, I believe they should be. They should be out and about more, should be known more and be more visible. I tried to do that in my time and had some good spokespersons working for me, one of whom was Irish. I always believed that was important. I remember Romano Prodi said to me at the beginning:

You have the portfolio of consumer protection. You must get out there and be known. Speak yourself, be on television more than others. Do not rely on your spokespersons because being the representative for consumer interests, you must be known.

I sought to do that. More should be done in that area.

Dr. Noel Dorr:  Senator de Búrca asked five questions to which I will try to give a brief response. The most obvious public example of influence would be in the Structural Funds area where we benefited from the approval of Chancellor Kohl, François Mitterand and Jacques Delors. They all felt that Ireland was doing its bit, was an enthusiastic member state and was using the funds well. That came through in the granting of the funds, which were not there for the taking, but had to be negotiated. We benefited substantially from them. I found our influence important again when negotiating and chairing the group drafting the Amsterdam treaty in 1996.

The Union is largely a union of states and peoples over the past 50 years. However, it is carefully structured. There is a separation of powers between the institutions. We have direct democracy in the election to the Parliament and representative democracy in the attendance of Ministers at the Council. They are now co-legislators and must both approve legislation. It is a carefully structured system. It is not similar to the United States nor to a national state. It reflects the character of what I described, namely, a union of states and peoples, but everyone wants to push it one side or the other.

I agree with the Senator that the people must be brought along more. The great theme after the Danes rejected the Maastricht referendum in 1992 was to get closer to the people and citizens. That has been a theme for a long time, but is not always well carried through. In 1996, when the Irish Presidency was drafting the first draft of the Amsterdam treaty for presentation in December 1996, we were very conscious of that theme. We worked hard to present the treaty in a form which had a page or two of explanation of each proposal and the need for it and then the legal text proposed. That was well received and understood at the time by journalists. I admit it is easier to do a first draft than to produce the final treaty. However, the European Union, once it adopts a treaty, loses sight of the need to explain it. What happens then is the treaty goes to the legal people and what results is often unreadable. I am more convinced than ever that Ireland, because it so often has a referendum, has a particular role for the future in insisting that equal weight be given to the presentation of what is agreed as to the agreement itself. I have suggested some ways of doing that. We seem to have lost sight of this, but it is vital we try to do it.

On the issue of a permanent EU information service in each member state, there are offices of the Parliament and the Commission, but perhaps they could be more active. I agree on the need for European identity and cultural programmes. One of the programmes we have that creates the idea of our dual identities is the Erasmus programme for young people that gives them the freedom to travel all over Europe. How different this is from 50 years ago when I was student. Such programmes create a sense that we can be proud of being Irish and of our sovereignty, but at the same time be honest and willing partakers in this wonderful compromise structure we are creating together in Europe.

With regard to elites, Mr. Byrne has talked about the Commission. I would not dare to talk about it, as he is a distinguished former member of it. The Commission is appointed, but so are judges. We accept judges are appointed and do not wish to elect them, at least on this side of the Atlantic. Under the new treaty considerable progress was made in this area. The President of the Commission would have to be approved by the Parliament. The appointment would take account of the result of the elections to the Parliament. In other words, the implication was that the majority in the Parliament would be reflected to some extent in the Commission. Second, the body of the Commission, once appointed, would have to go before the Parliament for a vote of approval, as is already the case. Third, the Parliament can sack the Commission, as it has done. There is this check. The idea of electing Commissioners who are mostly former politicians seems appealing at first sight and is spoken about a lot but the more one moves towards the direct election of Commissioners, the more one is moving towards a federal state. My point is always that there should be a balance between a union of states and peoples. There is a direct election process for the Parliament and representative democracy in the Council, at which Ministers represent governments and speak for states. However, the direct election of Commissioners is exactly the kind of step of which those who want to move towards a more federal model would approve. We must not overlook this point.

Senator Déirdre de Búrca:   I would like to ask about the final destination of Europe and the future of the Union expert group that has been established by the European Union. Pat Cox was mentioned initially as someone who might chair that group. Do either Mr. Byrne or Dr. Dorr think Ireland’s rejection of the Lisbon treaty was related to the fact he was not appointed as a member of that group? How adequate is the establishment of that group as a response to the issue of the final destination of Europe or to the matter of bringing greater clarity to the issue? Is the group inclusive enough and should every member state be represented on it?

Chairman:   I welcome our guest, Mr. John Bruton, head of delegation of the European Commission to the United States. Mr. Bruton has been invited here to follow up on one of our work modules. As he will be aware, the sub-committee was established to consider Ireland’s future in the European Union. We have divided our work into four modules, one of which focuses on what will be the impact of the Irish decision on the Lisbon treaty referendum on our standing internationally and in the European Union. I am pleased to welcome Mr. Bruton and thank him for agreeing to meet members of the sub-committee at short notice.

Senator Déirdre de Búrca:   I welcome Mr. Bruton and apologise for arriving during his presentation. Having had an opportunity to briefly read the paper he circulated, I have a number of questions. I do not agree with his criticism of the Government’s decision to opt out of the justice and home affairs provisions of the Lisbon treaty. This was sensible and precautionary measure which was not designed to apply for the long term. The Government agreed to review the position after three years and will decide to opt in or out on a case-by-case basis. In doing so, it secured maximum flexibility for itself. Ireland and Britain have a common law tradition and for this reason we were not sure what impact moving to common decisions in the area of justice and home affairs would have on this tradition.

If the Oireachtas were to accept Mr. Bruton’s proposal to amend the European Communities Act 1972 and clarified the circumstances under which it would be necessary to put a treaty to the people by referendum, what impact would such a decision have on the perception of citizens? To date, most major treaties have been ratified by means of popular referendum. What would be the impact of changing the position, particularly given the poor level of citizen engagement? During referendum campaigns people are educated about Europe and its institutions. Would such a decision give rise to a danger that the democratic deficit would widen further?

Mr. John Bruton: The decision of the Irish and British Governments to opt out of the justice and home affairs provisions of the Lisbon treaty was legally and politically mistaken. It was legally mistaken in the sense that important measures such as the pursuit of evidence in other jurisdictions have been lost, not only for the countries which are opting out but for all member states. We are in the doubly difficult position in that we are preventing other countries from advancing on matters in which we are not willing to participate. That is the legal problem.

The political problem is that regardless of the reasons given for opting out of the cross-border crime provisions, the Government decision meant it surrendered the best political argument it could have used to support the Lisbon treaty during the campaign. People are concerned about crime. Deputy Flynn’s constituents and people all over Ireland are well aware of crimes fuelled by drugs. To be able to say that the Lisbon treaty would have helped in the battle against crime and the importation of drugs and weapons would have been a tremendous argument in the referendum campaign. By opting out, the Government surrendered this argument, which was a mistake.

I am a barrister by qualification and I do not buy this stuff about common law. There is a certain bewigged superciliousness in the legal profession in England and Ireland – Scotland’s legal system is similar to the systems in place in continental Europe – about the civil law which is entirely misplaced. There is due process and protection for the accused in civil law systems. Legal costs are much less in civil law systems than in the famed common law system. It is surprising that a country that worked so hard to separate itself from England should now become so emotionally attached to the common law system that it feels it must follow Britain. Interestingly, Britain opted out of these provisions for Scotland as well, without consulting it.

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Joint Committee on European Affairs by Deirdre