Micheál Martin (Cork South Central, Fianna Fail)

I know, but they are there. Section 5(1) provides that references in enactments other than the Bill and the 1972 Act to the European Communities shall be construed as including references to the European Union. Section 5(2) provides that references to the treaties governing the European Communities shall be construed as references to the treaties governing the European Union. Section 5(3) provides that references in any enactment to the treaty establishing the European Economic Community or the treaty establishing the European Community shall be construed as references to the treaty on the functioning of the European Union. This takes account of a provision in the Lisbon treaty to the effect that the Treaty of Rome, which is currently formally called the treaty establishing the European Community and prior to Maastricht was called the treaty establishing the European Economic Community, will henceforth be called the treaty on the functioning of the European Union. Is that clear? Section 5(4) provides that "enactment" shall include a statutory instrument.

Section 6 of the Bill amends section 1 of the European Union (Scrutiny) Act 2002 by updating the definition of "measure" to take account of terminological changes consequent on the entry into force of the Lisbon treaty. The change in title of the Treaty of Rome has been reflected in paragraph (a). Paragraph (b) reflects the fact that the different types of legal instruments used in the existing second pillar - joint actions and common positions - are replaced by a joint legal act used across all areas of the Union's activities, to be known as a "decision". Accordingly, a "joint action adopted under Article 14 of the Treaty on European Union" and a "common position adopted under Article 15 of the Treaty on European Union" will become a "decision adopted under Article 28 or 29 of the Treaty on European Union." Paragraph (c) reflects the fact that the constitutional amendment facilitating the ratification of the Lisbon treaty has simplified and updated the provisions of the Constitution relating to our membership of the Union, by replacing the wording in the 2002 Act, which refers to "a measure requiring the prior approval of both Houses of the Oireachtas pursuant to Article 29.4.6° of the Constitution" with a new wording, which refers to "an act ..... requiring the prior approval of both Houses of the Oireachtas pursuant to subsection 7° or 8° of Article 29.4 of the Constitution". These are the provisions in the Constitution which require the prior approval of both Houses of the Oireachtas to be obtained before the State can participate in certain EU measures, including acts adopted under the area of freedom, security and justice.

Section 7(1) of the Bill provides for the operation of the new powers of the Houses of the Oireachtas under the terms of the treaty. These powers will allow either of the Houses, by means of a resolution, to object to a proposal to move from unanimity to qualified majority voting in the Council of Ministers, or a move from a special legislative procedure to the ordinary legislative procedure provided for under Article 48.7 of the Treaty on European Union, as amended by the Lisbon treaty. This is the so-called general passerelle, or bridging, clause. The ordinary legislative procedure involves an equal decision-making role for the Council of Ministers and the European Parliament in the adoption of regulations, directives and decisions. It requires the Council to operate by qualified majority and the Parliament to operate by a simple majority of those voting. However, if unanimity is required in the Council, or the Parliament has a lesser role in the decision making process, this is known as a special legislative procedure. Section 7(1) complements the provisions of the new Article 29.4.8° of the Constitution, which requires the prior approval of the Houses of the Oireachtas before the State can agree to any change under Article 48.7 of the Treaty on European Union. Such agreement would, de facto, be expressed by the Taoiseach on behalf of the State at a meeting of the European Council.

Section 7(2) of the Bill provides for a similar power with respect to a proposal to move to the ordinary legislative procedure in relation to family law matters with cross-border implications under Article 81.3 of the treaty on the functioning of the European Union. The prior approval of the Houses of the Oireachtas is required in this area under Article 29.4.8° of the Constitution. As this matter falls within the area of freedom, security and justice, the prior approval of both Houses of the Oireachtas would be also required under the new Article 29.4.7° of the Constitution in accordance with Ireland's opt-in arrangement under Protocol No. 21 to the treaties.

The veto mechanism provided for in sections 7(1) and 7(2) of the Bill is known colloquially as the "red card." Article 6 of Protocol No. 2 to the treaties on the application of the principles of subsidiarity and proportionality provides that if at least one third of national parliaments in the European Union issue reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity, the draft must be reviewed. The threshold is one quarter in the case of draft legislative acts submitted in the area of freedom, security and justice. The institution proposing the legislative act, which is normally the Commission, may decide to maintain, amend or withdraw the act. It must give reasons for such a decision. This mechanism is known as the "yellow card." If the draft legislative act is made under the ordinary legislative procedure, and if a simple majority of national parliaments issue reasoned opinions on non-compliance with the principle of subsidiarity, the Commission must justify any decision to maintain the proposal in a reasoned opinion submitted to the Council and the European Parliament. This procedure is known as the "orange card." The principle of subsidiarity means that in areas where the member states and the European Union share a competence, action may be taken only at Union level where this is deemed likely to be more effective than action taken at national or regional level. The mechanism for the exercise of the "yellow card" and the "orange card" is the same and is provided for in section 7(3), which states that either House may issue a reasoned opinion on whether EU legislative proposals comply with the principles of subsidiarity in accordance with Article 6 of Protocol No. 2. The consequence of an orange card, rather than a yellow card, is more stringent. If the Commission wishes to proceed with its proposal, the European Parliament and the Council of Ministers are obliged to consider both the opinions of the national parliaments and the Commission's justification before deciding to proceed with or terminate their consideration of the proposal.

Section 7(4) of the Bill covers acts, rather than draft legislative acts, of an institution of the European Union. It provides that if either of the Houses of the Oireachtas gives a reasoned opinion to the Minister for Foreign Affairs that an act of the EU institutions infringes the principle of subsidiarity, the Minister shall arrange for proceedings seeking a review of the act concerned to be brought in the Court of Justice of the European Union in accordance with Article 8 of Protocol No. 2. Section 7 will form the basis for the new role of the Houses of the Oireachtas in the European law-making process. This new role is proof, if it were needed, that the Lisbon treaty will make the Union more, not less, democratic. It is not proposed to make provision in this legislation for broader questions, such as Oireachtas scrutiny of draft European Union legislation or the transposition of directives. The Government is of the view that it would not be possible to deal with these issues adequately within the tight timeframe available. It accepts that these issues will need to be dealt with at a later stage, when it has had time for a proper consultation process.

Section 8 deals with the implementation in Irish law of EU codification directives, which are a relatively new phenomena. Such directives repeal pre-existing directives in a particular subject matter and consolidate them with a view to making the EU legal system more transparent and easier to understand. This process mirrors the steps being taken at domestic level to consolidate the Statute Book. Section 8 provides that statutory instruments giving effect in domestic law to acts of the EU institutions, which have been repealed and replaced by codifying acts of such institutions that do not materially modify the rights or obligations conferred by the repealed acts, will have effect as if they had been made for the purpose of giving effect to the codifying acts concerned. The provision is confined to EU codification directives which do not change existing law. The Government is committed to mirroring at domestic level the simplification being carried out by the EU. Therefore, Departments, as a matter of policy, will be expected to prepare codifying statutory instruments to ensure transparency. This technical provision will avoid the possibility of opening up lacunae in the enforcement of our EU obligations, pending the making of such statutory instruments.

The effect of section 9 is that section 8 on EU codification directives will come into force on the enactment of this Bill, but the rest of the provisions will not come into force until I sign a commencement order, which I will do as soon as the date of entry into force of the treaty becomes clear. The Act must come into effect on the same date as the treaty enters into force. As I have said, this could be as early as next week.

These are the provisions of the Bill. Now that the entry into force of the treaty is within sight, I would like to indicate to the House some of the next steps as we move towards implementation. In his statement on the outcome of the referendum, the Taoiseach stated:

The European Union is shaped by its peoples and nations to serve its peoples and nations. Today's vote is a declaration of intent by the people of Ireland to remain at the heart of Europe, where our future belongs.

With that in mind, the Government is committed to pushing for the early adoption at EU level of the necessary procedures and conditions necessary for the citizens' initiative provided for by the treaty and the Government will take any steps at domestic level that might be necessary on foot of this.

Deputies will recall that, under the new citizens' initiative, at least 1 million citizens who are nationals of a significant number of member states will be able to invite the Commission to submit proposals on a matter within its competence. This is an important and welcome development under the treaty and putting it into place is a priority for the Government.

If there is sufficient clarity in the coming days on the intentions of the President of the Czech Republic, the European Council will discuss institutional issues, including the implementation of the treaty. Consideration will have to be given to two new high-level appointments, namely the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy. In addition, the Irish member of the European Commission will need to be appointed and the Government is currently considering this.

After intensive contacts and negotiations, the European Council in December 2008 defined a path to allow the treaty to enter into force by the end of 2009. The Council agreed that, provided the treaty enters into force, a decision will be taken to the effect that the Commission will continue to include one national per member state. This represented a clear and positive response to a key concern that arose in last year's referendum.

Once the Lisbon treaty enters into force, we will be sure to have an Irish Commissioner at the Commission table. However, if the ratification process is not completed and the Nice treaty remains in force, the size of the Commission will be reduced and no country, including Ireland, can be guaranteed a place at the table indefinitely.

The Lisbon treaty will simplify and stabilise the Union's external representation. One of the key elements in this area is the establishment under the treaty of two important new positions which are relevant to the foreign policy area. The European Council brings together the Heads of State or Heads of Government of the 27 member states and it defines the Union's general political direction and guidelines for the common foreign and security policy. Within these guidelines, the Council of Ministers adopts decisions on actions and positions to be taken by the Union, and any necessary implementation arrangements.

The President of the European Council will hold office for a two-and-a-half-year period and may be re-elected once. The President will chair the European Council and drive forward its work. His or her role is not confined to external relations but, on the external front, he or she will represent the Union in foreign policy matters at Head of State or Head of Government level.

The High Representative of the Union for Foreign Affairs and Security Policy will chair meetings of Foreign Ministers and represent the Union generally in the foreign and security policy area. This new post will improve the interaction and coherence between the Council and the Commission in that the high representative will be also a vice-president of the Commission with responsibility for external relations. The high representative will be able to make proposals on the common foreign and security policy and elaborate the Union's external action on the basis of the strategic guidelines laid down by the European Council.

In representing the Union externally, the high representative will play a key role, for example, in political dialogue with third countries and at international conferences and in international organisations. He or she will be assisted - this is a considerable innovation - by a European external action service which will have a presence in both Brussels and third countries. The European external action service will include staff seconded from national diplomatic services of the member states in addition to officials currently serving in the Commission and General Secretariat of the Council. Implementation of the treaty's provisions on the European external action service will be discussed at the European Council next week and consideration is under way in my Department of the proposed structure of the service and on optimising the Irish profile within it.

More generally, the Government is looking at a renewed strategy for engagement with the European Union with a view to maximising Ireland's influence on EU laws and policies. This strategy will include support for the employment of Irish personnel in EU institutions and bodies.

The Lisbon treaty puts the European Defence Agency, which was established during the Irish Presidency in 2004, on a treaty basis for the first time. The purpose of the agency is to assist and support the member states to develop the necessary capabilities to undertake peace support and crisis management operations.

Participation in specific European Defence Agency projects is entirely voluntary and is for national decision on a case-by-case basis. The legally binding guarantee on our traditional policy of military neutrality secured by Ireland in June provides that it is a matter for each member state to decide, in accordance with the provisions of the treaty and any domestic legal requirements, whether to participate in the European Defence Agency.

The Defence (Miscellaneous Provisions) Bill 2009, which was published last month and brought before the House by my colleague the Minister for Defence last week, makes it clear that Irish participation in European Defence Agency programmes will be subject to the prior approval of both the Government and Dáil Éireann. It also provides that the Government will not approve participation unless it is satisfied that such participation would contribute to the enhancement of capabilities for UN-mandated missions in peace-keeping, conflict prevention or the strengthening of international security in accordance with the principles of the Charter of the United Nations. Similar conditions pertain to any possible participation by Ireland in permanent structured co-operation.

I hope that, with the passage of this Bill, we will be able to turn a page and move on from protracted discussions on institutional issues and focus our efforts on issues of direct consequence and relevance to the citizens of the Union. I have in mind issues such as climate change, energy security and the global economic crisis. The Lisbon treaty gives the Union the tools it needs to tackle big-ticket issues such as these, issues that are beyond the scope and competence of Ireland alone. EU membership continues to be vital to our future and ratification of the Lisbon treaty represents an important step we can take on the road to national recovery.

I recall what Mr. Jack Lynch said in April 1972, namely, that the decision to be taken in our referendum on European Economic Community membership in the future "would be recorded either as an unprecedented opportunity which we choose to grasp with incalculable gain or which we choose to throw away with irreparable loss".

The decision taken by the people at the beginning of this month to ratify the treaty of Lisbon and to renew our commitment to the European Union was the right decision and it was of comparable significance to the sovereign decision taken by the people, almost half a century ago, on the eve of our accession to the then European Economic Community. The Bill before us gives effect to the wishes of the people, as expressed on 2 October. I look forward to today's debate and commend the Bill to the House.

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