Dr. Gavin Barrett:

I thank the Chairman for the invitation to come before the committee. I will first discuss the wider EU debate on a greater role for national parliaments, after which I will consider what an enhanced role for the Oireachtas might look like and then I will comment, in so far as I can, on what seems to me, from the outside, to work and not work with regard to scrutiny and oversight.

The role of national parliaments has greatly increased in recent years and I traced through this progression, perhaps in excessive detail, in chapter 3 of the report. I do not propose to go into it in too much detail. Suffice it to say there was hardly any mention of national parliaments in the original treaties. The real focus was on the European Parliament but this proved inadequate, partly because of the continuing reality that people primarily identify with reference to their nationality and not the fact they are European, and because of low turnouts in European Parliament elections. The position of national parliaments has changed gradually over time and the legal instruments have reflected this. We had declarations at Maastricht, protocols adopted at Amsterdam and protocols and treaty provisions adopted at Lisbon which came into force in 2009.

Apart from the limited nature of the success of the European Parliament as the standard bearer of European democracy, there are all kinds of historical reasons the focus has shifted to national parliaments. They are set out on page 129 of the report. Increasing the role of national parliaments has helped defuse arguments about the growth of a democratic deficit at European level, to some extent at least. Arguably it has been necessary also to avoid national executives escaping from democratic control due to the transfer of decision making to European level. A bigger role for national parliaments is compensation for the change made in 1979 which meant membership of the European Parliament was no longer made up of national parliamentarians. Direct elections put an end to this.

The profile of national parliaments has grown and we can look forward to this continuing because there is a general feeling that come the next major treaty revision, the terms of the subsidiarity protocol will probably be widened to allow a review of EU instruments by national parliaments, for example by reason of violations of proportionality or failure to give adequate reasoning for legislation. The question we should ask is whether we are right to continue to extend the role of national parliaments, in particular in terms of supervision of government ministers. Many arguments can be put forward in favour of it and some against it. In favour is the argument that it is the role of national parliaments to supervise the national government on behalf of the electorate in all of the Government's activities without exception, including EU matters. Also in favour is the argument that increased supervisory powers are needed to compensate for the transfer at European level, and I have already commented on this. There is also the argument that an increased role for parliament can strengthen the hand of ministers at European level because their arguments become better rehearsed and they have a better excuse for being tenacious at European level. It can also be argued that the European Parliament is inherently, or in practice, incapable of providing sufficient democratic legitimacy. There are also arguments based on the idea a national parliamentary role brings Europe closer to the citizens.

It is also possible to raise arguments against increasing the role of national parliaments. One can argue it leads to increased polarisation, more difficulty in reaching agreements at European level and disruption of the delicate compromises needed to get agreement at European level. Curiously enough, the experience throughout Europe seems to have been that an enhanced role for national parliaments does not increase popular acceptance of decisions at EU level, because the states with the greatest scrutiny are sometimes those with the greatest of degree of euroscepticism.

Overall the consensus is that, on balance, the democratic legitimacy of the EU requires the input of national parliaments and the European Parliament, but we need to think very carefully about how and when national parliaments are empowered to intervene. We need to be aware of a number of issues in particular in empowering national parliaments. We must recall parliaments are forums and not actors. Sometimes the division is presented as the executive on one side and the legislature on the other and never the twain shall meet. In reality, we are all aware the real division is between the executive and its supporters who are the majority in the national parliament on one side and the opposition on the other. If one establishes a system which does not take account of this real dichotomy as opposed to the more theoretical one, it will not work. Arguably, this is why the subsidiarity mechanism has not been a greater success.

Bearing in mind this dichotomy tells us what we can expect committees to do. We can expect monitoring scrutiny, in other words demanding information on the government's activities to be done by all committee members, even government supporters, but political scrutiny, in other words assessing how appropriate the government's behaviour is at European level, is something which, in reality, will only ever be done, if at all, by opposition members on the committee just as is the case in plenary session of parliament. One must remember the real division in this regard.

A second factor to bear in mind is that parliaments are subject to serious constraints, such as informational asymmetry, in carrying out their role. The executive has all of the information but the legislature does not. This takes some counteracting for which informative mechanisms are required. Many parliamentarians are simply just not interested in European scrutiny. At the end of the day, it does not win one votes, and this is a serious handicap in making the system work with regard to European scrutiny. It must be borne in mind also.

A point which is important for us to remember is that a parliament needs to balance centralisation and decentralisation in its functioning when it comes to EU affairs. There has been a shift in the Oireachtas to sectoral committees with regard to scrutiny, and appropriately so because the scope of the European Union is so wide at this stage that it is impossible for a single committee to act as a sinkhole for all European Union matters. At the same time, we all know it is not necessarily working all that well in some respects. As was discovered by the Dutch lower house, there are potential disadvantages to an entirely sectoral approach which lacks any centralised co-ordination. The experience in more than one member state, and not only the Netherlands, is that leaving everything to individual sectoral committees can lead to European policy matters being neglected in favour of more familiar domestic issues, and consequently one ends up with an inadequate level of scrutiny. We must ask ourselves whether this is happening in Ireland and, if so, whether there is anything we can do about it. The state which has coped best with this particular problem is Finland, which, like Ireland, has sectoral committees to deal with European issues, but they all report to a grand committee, and this seems to have been able to make the system work.

I will now consider what an enhanced role for the Oireachtas in EU affairs might look like and who needs to drive it. It is a very good question and the reason is there is no one role for national parliaments throughout Europe in European affairs. There are many possible roles and jobs for them to do but they cannot do all of them well, so there is an element of having to concentrate and having to choose. I am involved in an international project producing a handbook of national parliaments in the EU. Other people in the room are also involved, such as Dr. Claudia Hefftler who is in the Public Gallery. The project describes five idealised roles for national parliaments, and various states have variations of one or other. A national parliament can be a public forum.

In other words, it can use parliamentary activities to provide information for a wider public, and we do that in Ireland both in our plenary session and in committees. It can act as a government watchdog, making the government account for what it is doing either before or after its activities, and it is hoped it can exert an influence in that regard. It can act more aggressively as a policy shaper, if required, and the Germans act in this way. This involves groups of parliamentarians actively trying to influence government policy matters. It can act as an expert body, and the House of Lords famously does this, providing independent expertise with regard to various European questions. Of course, the reports are read from one end of Europe to the other. A parliament can also act as a European player. This means it does not just try to influence the government but rather what is happening at a European level. A mix of these actions or all of them can be attempted but ultimately a couple must be prioritised, and it is difficult to do everything well.

In chapter 6 of my study I give a list of actions that might be useful to attempt. I will rattle them off quickly rather than discuss them. One is a system for influencing policy-making in the period before draft legislation is formally adopted at European level. That is on page 266. That would apply if a country wants to be a European player and it essentially involves taking part in the political dialogue with European Union institutions. Second, there is a system of dealing with a position once draft legislation is formally proposed at European Union level. That relates to securing accountability in what Ministers do and agree in Council. Securing accountability for what Ministers do is likely to remain the main democratic function of national parliaments when it comes to European Union affairs. Such a process can be used more effectively either with a scrutiny reserve system or a mandate system, and in the absence of those, it would become a little more difficult. That is why two sub-committees of the House have recommended the introduction of the scrutiny reserve system.

Third, there is a system that would oversee the adoption of measures in Ireland to implement European Union directives and regulations. We can return to the issue with questions but it is a major lacuna in Ireland because we simply do not have an effective system in that regard. Fourth, there is a system to deal with European Union initiatives that do not involve the adoption of legislation at all, and they can be significant. For example, large parts of Europe 2020, which involves the expenditure of vast sums of money, are driven by the open method of co-ordination rather than legislation, so if one only examines legislation, one will miss that. Fifth, there is a system for making the Oireachtas an effective forum for a wider and deeper debate by the public. That is part of the reason we are here today. There is also the likes of parliamentary questions and debates on European Council decisions, which are important in that regard.

A third topic relates to what is working in terms of scrutiny and oversight. This is the dangerous stuff as this is where I get to sit back and criticise the Oireachtas and what it is doing. Everything I say must be taken with the caveat that I am on the outside and Members are on the inside, so they have at least as good an idea and perhaps better than I do in this regard. On the positive side, the Oireachtas is doing valuable work related to the European Union, including Dáil questions, debates and the work of committees. They all provide occasions to ventilate European matters - the committees in particular - and examine matters in a more detailed fashion.

Recent positives introduced in this Oireachtas session include the fact that European Council meetings are now preceded by statements. That is in addition to the longer established tradition of having debates afterwards. Scrutiny work has been mainstreamed, although it is not working all that well as of yet. This must be done and we have to make mainstreaming work, so it is a positive step. A parliamentary steering group for European affairs has also been created, which is positive.

What is not working so well? There is much good work being done in trying to provide a forum for the discussion of European Union issues, but attracting public and media attention to it has proved, as of yet, almost unsurmountable. Perhaps there is a role for outreach meetings or structured invited participation, but the process is not working now and we are not getting enough of a public forum.

There is also the idea of expressing policy views before European Union laws are formally drafted, and relatively speaking the Oireachtas has a pretty poor record at European level in this regard. In other words, we are one of the lower performers in terms of contributing to the political dialogue. I know there are two sides to this, and getting a response from the Commission, for example, is not something that works all that well. I have only counted three reports sent this year as part of the political dialogue at European level, so it seems we have a lower level of activity in that respect compared with other countries.

The next issue is the scrutiny system, or tracking developments once draft European Union laws are formally proposed. Technically, we scrutinise everything as they are sent to sectoral committees, although that is not the full picture, as nearly all European draft laws are immediately deemed unworthy of further scrutiny by the various sectoral committees. In fairness, very frequently such action is entirely appropriate, although whether that approach should be taken quite as often as it is now is more open to question. We have used the subsidiarity mechanism twice, which is a bit of a problem.

What about engagement with Ministers? This committee is particularly good in that respect, as are the relevant Ministers, but most recently there had been 43 Council meetings but only 19 occasions of Ministers coming before the relevant committees. Even assuming all those meetings relating to European affairs concerned Council business in some respect, approximately two thirds of the meetings did not evidence scrutiny, which is simply not good enough. That area needs more work.

With regard to overseeing the implementation of European Union rules into Irish law, we know the Oireachtas role is simply a fiction. It is important stuff and, technically, ministerial regulations can be annulled by the Oireachtas, although it has not happened in 40 years of Irish membership. Something is not functioning correctly in that respect. We have to bear in mind that many instruments are dry, technical matters and do not really need to be examined, but that is not the case with all of them. For example, with regard to the EU organ transplant rules, the Minister of State at the Department of Health, Deputy White, openly acknowledged that the subject of those rules manifestly merited discussion and consideration in Parliament. I am not criticising this Government specifically as there has been a 40 year lacuna. There is also the overseeing of European Union policies advanced without legislation, which is no small matter. Europe 2020 is just one example of an issue that does not tend to be examined.

I have been asked for suggestions, so if it is acceptable, I will rattle off perhaps ten suggestions.