Pat Rabbitte (Dublin South West, Labour)

Although the original text of the constitutional treaty has been the subject of a cut and paste job, the essentially social democratic values of enhanced European democratic decision-making and an improved social policy dimension are largely still intact in the reform treaty. These are the primary considerations motivating the Labour Party's supportive position. We need more effective operating mechanisms and must preserve progress and past achievements. In addition, we must continue to stimulate innovation and grow employment. We must protect and advance social cohesion. We welcome the new impetus to tackle global warming and are glad to play our part in addressing global poverty. We acknowledge that some of the most serious crime experienced in this jurisdiction, in particular, that which derives from the drugs trade, has an international dimension and will require enhanced co-operation between member states.

However, our positive disposition does not mean that we do not regret the opportunity the treaty presented to draw up a genuinely accessible version of the constitution of Europe. It is to delude oneself to believe that it is somehow the people's fault that they demonstrate little enthusiasm for this latest project. For a people to truly claim to own a developing institutional political process, they must first understand it. As my colleague Deputy Costello remarked earlier, the popular failure to grasp the European architecture is not due to some intellectual deficiency on the part of European citizenry, nor is it simply a lack of interest. To date, the process has been managed by a political class concerned only to ensure that its members understand each other rather than that their message reaches European citizens as a whole.

Is it reasonable to expect any citizen to offer his or her adherence and loyalty to a set of normative rules, institutions and values that are not clearly and legibly set out and which are incapable of being tracked except by lawyers and other professional experts? It is hard to make a plausible case that as a result of the reform treaty the whole series of treaties will now be more intelligible than they were before. This is not a single accessible coherent text. Departing from the Fianna Fáil script factory, Deputy Mansergh acknowledged as much in his contribution a few minutes ago. It may be a lawyer's and bureaucrat's paradise but in reality it is a series of references, amendments, insertions, protocols, declarations and opt-outs. It is not consistent with the stated commitment to openness and transparency.

It is worth noting that a relatively cumbersome convention, comprising 105 members, produced a document that, by comparison, was coherent and legible. As this is the instinctive reaction of most citizens, it does not mean that people generally do not accept the necessity for enhanced co-operation and for a more efficient way of conducting necessary business. Whereas it can be argued that cosmetically the presentation of a "constitution" was always going to be problematic, we have reached the stage after 50 years where we probably do need a constitution of Europe.

The Minister has drawn attention to the fact that there are certain significant differences between the constitutional treaty and the reform treaty in the justice and home affairs area. He referred to the change to qualified majority voting as a sea change. I agree, but the constitutional point to understand about European Community law and the increasing scope of the rule of European law is that in respect of matters of legal interpretation, it is not the interpretation of the Irish courts but of the European Court of Justice that prevails. In its own sphere European Community law is constitution-proofed, by which I mean that it is insulated from constitutional challenge from the standpoint of the Irish Constitution. If the writ of Community law was small, restricted or confined, and in the main touched lightly if at all on the daily lives of ordinary people, it would not matter very much.

Whatever about the present, however, that certainly will not be the case after the entry into force of the reform treaty. This is because the treaty envisages the enhancement and expansion of the role of the Union vis-À-vis national governments in a range of important fields, such as justice and internal affairs, and foreign, security and defence policy. I have no doubt but that it will be vigorously argued that the reform treaty threatens the British and Irish systems of criminal law and procedure, and our respective constitutional provisions in that area, or in short that bunreacht na hEorpa will override Bunreacht na hÉireann.

We have just heard Deputy Mansergh say he would be quite critical of the previous Minister for Justice, Equality and Law Reform who, he said, worshipped at the shrine of the protection of common law. I always marvel at the ingenuity of Fianna Fáil backbenchers who manage to single out the hapless former Progressive Democrats Minister when the current Minister holds exactly the same view, as does anybody extracted from the Four Courts, even if he expresses it somewhat more delicately than his predecessor. That is not to say that they do not have a point and that it would not be negligent of this House to attempt to measure the impact this argument will have on the electorate.

Deputy Costello sought to trace the key differences between the common and the civil law jurisdictions. We should not underestimate the popular attachment here to trial by jury. Likewise, in the matter of criminal procedure habeas corpus is enshrined in Article 40 of the Constitution. There can be no denying that our Constitution has significant fundamental importance in our everyday lives. It is the one law that legislators cannot change, the people alone may amend it. We have a system of investigation by the Garda Síochána, a separate system of prosecution by the Director of Public Prosecutions and an equally separate and independent Judiciary.

The major innovation in this treaty is the proposal for a European public prosecutor which would combine the powers of investigation and prosecution and the power to bring to judgment. It is difficult to envisage these diverse systems always easily co-existing, although it is puzzling that the Government did not mention this difficulty before the British opt-out. I accept that in respect of police and judicial co-operation in criminal cases the UK is our most important EU partner. Statistics bear this out. That is scarcely surprising given the common travel area between the two countries. That was the import of the contribution of the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan.

The 18th amendment to the Constitution includes a provision that was a Labour Party initiative. This stipulates as a minimum requirement that the exercise of certain options and discretions under the treaties requires the prior approval of both Houses of the Oireachtas. I presume the Government intends that the amendment Bill to be published next year will contain similar provisions. In other words, although the Government will have power to opt into any aspect of the justice and home affairs agenda it would have no authority to do so unless there was prior Oireachtas approval.

There is a tendency in Government and official circles to believe that where issues of Irish sovereignty arise it is sufficient to give a discretion to the Government, that is the Minister or, more likely, the official standing in for the Minister at the meeting in Brussels. Irish sovereignty is not preserved by giving a veto to Ministers at EU meetings. The idea that it is preserved by vesting in a Minister in Brussels the power to decide whether to agree to a proposal that has an effect in law and overrides the Constitution could appeal only to Ministers and their advisers. It makes no sense to anyone else. I hope the Minister of State will confirm that where that discretion is at issue he will observe the requirement for the prior approval of this House.

I agree with Deputy Mansergh that we all welcome the clarification to the effect that we are not opting out of the Charter of Fundamental Rights. I do not know why people want to come back from Brussels giving the converse impression. Deputy Mansergh, in his empirical view of these things, says that it may be of little moment that we have diminished to 12 seats. Not everyone in the House would take that view. I understood from earlier remarks by the Minister of State with responsibility for European affairs, Deputy Roche, and others that we had a reasonable prospect of coming back with 13 seats. It is a material issue for a small country. There ought to be a de minimus provision. This remains important.

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