Eamon Gilmore (Dún Laoghaire, Labour) | Oireachtas source

I welcome the opportunity to contribute to this debate, which has been most interesting. I compliment Senator Daly on the preparation of the Bill and Senator MacSharry on its presentation.
The discussion must be seen in the context of this House's engagement with the Taoiseach yesterday on the broader issue of Seanad reform. He has undertaken to engage in a process of consultation with party leaders to identify ways in which the Seanad could be more effective in carrying out its role as a second Chamber under the Constitution. I see the Bill and today's debate as, to some extent, a bit previous given the acknowledged need for a broader exercise.

Before I turn to the Bill itself, I wish to set out some key principles from the Government's perspective, drawing on the Taoiseach's comments yesterday. Any proposals on the future role of the Seanad cannot be made in isolation. They must take account of the Government's programme of Dáil reform and they must reflect the constitutional balance between the Houses and the role each House, and the joint committees, play. Any proposals must be workable from both a legal and constitutional perspective. They must be fit for purpose in terms of the Seanad's role as a second Chamber under the Constitution and should not duplicate existing work.

That said, I believe too that it is important to place on the record of this House the considerable improvements in this area which have been introduced by this Government since it took office. The programme for Government contained a number of commitments in relation to more effective parliamentary engagement with EU legislation and policy. The primary change was to move away from the previous system of centralised scrutiny by a small number of members sitting on one specialist committee to a mainstreamed model of EU scrutiny. This involved delegating responsibility for scrutiny of EU legislative proposals to all sectoral committees. Reflecting the approach, sectoral committees were also empowered to scrutinise statutory instruments within their remit. This approach ensures that scrutiny is carried out by Oireachtas Members - both Dáil and Seanad - who have the appropriate expertise in the particular policy area.

Another notable improvement is the increased engagement by sectoral committees with the relevant Minister prior to meetings of the Council of Ministers. That is an important element of Government accountability to the Oireachtas in relation to actions at EU level. Now two years in operation, pre-Council meetings with Ministers are becoming more routine across the committee system. That is borne out by the most recent report of the Joint Committee on European Union Affairs on the operation of the scrutiny system in 2012, which was laid before both Houses in July of this year. The report shows that there were 28 pre-Council meetings with 13 Ministers across 11 committees last year. We are still some way from the target of full engagement with all committees for all Council formations, however it is clear that the trend is in the right direction.

It would certainly be understandable had Presidency demands on Ministers and committee Chairmen negatively affected participation in the first part of this year. Now that the Presidency is over, the Government will be redoubling efforts towards the objective of ministerial engagement with committees, on all Council agendas. I see ongoing and regular ministerial engagement with committees, and focused engagement by the committees themselves, as being at the core of an effective scrutiny system. As Senators will be aware, a huge volume of documentation is received directly from the EU institutions on a weekly basis. Equally, committees have considerable policy workloads on the domestic front as well as legislative duties. It is important therefore that committees focus and balance their work. In that context, I welcome the identification by Oireachtas committees - for the first time this year - of priorities for detailed scrutiny based on the European Commission's annual work programme.

We must recognise that not everything is a priority, for example, the report I referred to earlier shows that committees considered 537 proposals in total in 2012, of which 13% were selected for detailed scrutiny and 5% for further action and follow-up. Equally however, for those proposals which are significant, there is a need to engage early, and ideally before the proposal is published, in order to have the most influence. That makes it crucial that committees focus on the proposals which are of most relevance from a national as well as a strategic EU perspective. The Commission's annual work programme and the consultation roadmaps which are published alongside it are invaluable tools for committees seeking to engage at the earliest stages of EU policy-making.

While much has already been achieved, I recognise that we can do more. Today's debate is reflective of a wider debate at EU level on the role of national parliaments in bridging the gap between citizens and the EU institutions. It is important that we are happy with our own arrangements at national level in order to effectively contribute to this debate. In that context, the Government has decided that it is timely to conduct an assessment of the current structures for EU scrutiny with a view to identifying areas for improvement.

It is envisaged that this assessment will be conducted initially at official level in consultation with Departments and the Houses of the Oireachtas through the interdepartmental committee on EU engagement which is chaired by the Minister of State responsible for European affairs.

One area which is often remarked on as requiring improvement is the scrutiny of statutory instruments. There is a comprehensive legislative framework in place that is largely fit for purpose, subject to some technical adjustments to reflect the role of sectoral committees in the scrutiny of statutory instruments. However, while statutory instruments are being laid in the Oireachtas Library, Oireachtas committees do not receive the texts directly. Therefore, there is scope for improvement. Equally, there may be scope to improve the information provided for committees to help them to prioritise statutory instruments for detailed scrutiny.

I welcome the recent initiative of the Minister for Transport, Tourism and Sport, Deputy Leo Varadkar, with the Joint Committee on Transport and Communications. It is a good example of what can be done to help committees in their work. The Minister has agreed to provide all draft statutory instruments within his Department's remit arising from EU legislation for the joint committee, together with an explanatory note, at least one month before they are proposed to be signed into law. Recommendations from the committee are to be provided for the Minister within two weeks and the Minister has undertaken to consider fully the recommendations and comply with them or, where this is not done, fully explain why not. The Minister has proposed that this measure will be reviewed during the summer of 2014 with a view to the possibility of making recommendations for wider application across the board.

Let me sound one cautionary note concerning my point about early engagement being the key to influencing policy at EU level. I am concerned that the debate on the role of the Oireachtas in the scrutiny of statutory instruments is not always well informed. There is little point in the Oireachtas engaging in lengthy debate about the substance of EU legislative measures at the time of their being transposed into Irish law, often by statutory instrument. At that stage, the policy issues are settled and our obligation is to apply the law agreed at EU level, having played a full part in its evolution and negotiation. What is appropriate at the time of transposition is for the Oireachtas to scrutinise the way in which the law is being transposed. It is a question of determining whether a statutory instrument is appropriate and proportionate, whether the penalties are proportionate and effective and whether it goes beyond what is required and so on. The initiative of the Minister for Transport, Tourism and Sport will be a useful exercise in stepping through these types of question with the joint committee and will be a useful input to further proposals for improvement in this area.

As both Senators Feargal Quinn and Catherine Noone stated, the proposals in the Bill are similar to those in the Seanad Reform Bill 2013, sponsored by Senators Feargal Quinn and Katherine Zappone and which is on the Seanad Order Paper for Committee Stage. I acknowledge the fact that the Bill was intended to provide a basis for and to stimulate discussion. In that spirit, the Government did not oppose it in the lead-in to the referendum. With the referendum decided, there is now a need to examine more closely the feasibility of the specific proposals on the table. A preliminary assessment suggests the proposals made in the Bill are flawed from a legal perspective and would not lead to an optimal scheme for scrutiny of EU directives. Notwithstanding the wider context and the discussions among party leaders announced yesterday, I will comment on some of the detail of the Bill.

The stated purpose of the Bill is to ensure scrutiny of EU directives by the Seanad prior to signature by the relevant Minister and that statutory instruments that are of public interest would be debated by the Seanad prior to enactment. The Bill proposes additional scrutiny powers for two stand-alone committees, each with seven Members of Seanad Éireann, with no involvement envisaged by the Seanad in plenary session and no equivalent powers for the Dáil. The basic premise of the Bill is inconsistent with the current legislative framework and the arrangements for scrutiny. As I have outlined, scrutiny of EU draft legislation and statutory instruments is delegated to Oireachtas joint committees which carry out the detailed analysis and report their recommendations to the Houses, as appropriate. The Bill is inconsistent with the general principle of parity of powers between the two Houses of the Oireachtas in regard to draft EU legislation and statutory instruments.

Senator Catherine Noone drew attention to the fact that the proposal to insert amendments in the Statutory Instruments Act 1947 demonstrated that the proposal was much wider than measures made under the European Communities Act 1972 or other statutes that permitted EU measures to be put in place and could potentially cover a number of statutory instruments unrelated to EU matters. More specifically, section 2(5) requires that a Minister "shall not articulate an official Government stance on a draft legislative measure until 21 days have elapsed after the laying of the draft before the Seanad". This seeks to put in place a 21-day Seanad-only scrutiny reserve on Ministers. This would be a significant departure from existing practice and the balance between the Executive and the Legislature and would, in principle, place an unacceptable restraint on the Government's ability to conduct EU business. Quite apart from the fact that this proposal would give the Seanad enhanced powers vis-à-visthe Dáil, it is inconsistent with the scheme of the European Union (Scrutiny) Act 2002 which expressly recognises that some matters may be particularly sensitive and urgent. Consideration would also have to be given to the possible impact on the European Communities Act 1972. On a practical level, the 21-day limit for recommendations is extremely short and does not fit with the current 20-day guideline under the 2002 Act for information notes from the Government which are a key input to committee consideration. It does not fit with the eight week window for national parliament scrutiny of subsidiarity under the Lisbon treaty.

Time does not permit me to go into further detail on the Bill. However, the examples highlight some of the complexity that has to be considered when elaborating on such a fundamental change, one which would affect not only the role of the Seanad but also of the joint committees and, therefore, the Dáil. There is considerable scope for an increased role for the Seanad and Senators without either replacing, or duplicating, the role of the joint committees.

Parliaments generally work on sectoral issues through committee systems. This is the most efficient way to conduct detailed scrutiny work before bringing it to the floor of the plenary session. The current scrutiny system is two years in operation and must be given time to deliver. It would be a regressive step to now take away from the roles of the sectoral committees by establishing a parallel Seanad committee system. In that vein, it is worth at least considering whether the principal shortcomings in Oireachtas scrutiny of EU legislative proposals are not, in fact, legal but arise from the need for further engagement, better focus and clear prioritisation. Having sectoral committees playing the lead role is certainly the correct approach and with the recent improvement in prioritisation and mainstreaming, we are on the right road towards ensuring effective engagement between the Oireachtas and the Government on EU business.

I welcomed the opportunity to contribute to the debate. It was a very useful exercise both to hear Senators' views at first hand and also to outline clearly the recent progress towards improving our scrutiny arrangements. We are agreed that what is needed now is a more effective and modern second Chamber. However, as the Taoiseach said yesterday, that is not easy to achieve. He is committed to a process of consultation. This Bill and the general issue of scrutiny of EU directives will feature prominently in that process and it is important that we do not try to pre­empt the outcome now. For that reason, because of the flaws in the Bill, to some of which I have alluded, and given that the function of effective scrutiny of EU directives should remain with joint committees, the Government does not propose to support the Bill. Having said that, however, I must make it clear that it intends to have serious engagement with this House on reform. The issue of scrutiny of EU directives and the role this House can play in that regard will be very much part of the process. As some Members said, there is probably scope for more in the area of scrutiny of EU directives without legislative change. For example, the reports of the joint committees go to both Houses. It is open to both to have whatever debate they want to have on them. Issues such as the trade agreement with Canada, CETA, as raised by Senator Brian Ó Domhnaill, have been in the public domain for some time. There is no reason there could not be a debate on the agreement.

Let me respond to two questions raised by Senator Paschal Mooney, the first of which was on the yellow card system. Ireland has exercised its yellow card on three occasions to date, but the threshold at EU level was not reached in respect of the first two. With regard to the CCCTB proposal, there was only one vote possible. It was in the Dáil as the Seanad had not yet met following the general election in May 2011. The proposal establishing a framework for maritime spatial planning and integrated coastal management was made in 2013. Both Houses had two votes on it. Both have recently adopted a yellow card on the proposal to establish a European public prosecutor's office.

On the monitoring of mobile phones, the intelligence services of any state should not monitor the telephones of political leaders or people in the administration or government of another state.

I have discussed the issue of the monitoring of telephone communications, which has been in the public domain for some time, with the High Representative of the Union for Foreign Affairs and Security Policy. I know she has discussed it directly with the state concerned. There should be no question that friendly states should not tap each other’s phones.