Getting Reform Right for EU legislative oversight

committe3By Gavin Barrett (UCD School of Law) 30 September

Oireachtas reform is a hot topic at present. Many cite the need for the Oireachtas to do its European Union-related work better as an objective justifying retaining the Seanad. Others claim the Dáil alone can do such work and more besides.

It seems worthwhile asking, therefore: just how well is the Oireachtas doing its European Union-related scrutiny and legislative work at present?

Opinions vary. Former Green minister Eamon Ryan gloomily concludes (Irish Times, 5 September) – echoing commentator and lawyer Noel Whelan- that Oireachtas committees ‘have proved incapable of providing effective oversight’ of European Union legislation. Minister of State Alex White admitted in August that it was ‘manifestly the case’ that ‘we have  serious deficiencies in our parliamentary system in regard to the scrutiny of European Union proposals’.

In striking contrast, David Stanton TD,  chairman of the Oireachtas Committee Chairs, claims (Irish Times, 6 September) that our parliamentary system ensures all European Union legislation ‘is given full consideration’, insisting the Oireachtas is ‘playing our part and participating fully at all levels…particularly when it comes to the scrutiny of European Union legislation’.

So who is correct?

Both sides have something to say for them. There is clearly no doubt that the Oireachtas does valuable European Union-related work. Dáil questions and Oireachtas debates generally provide occasions to ventilate European matters. Oireachtas Committees proceedings provide a forum for detailed examination of European Union issues, for involving the public and for calling ministers and departments to account.

Furthermore, it is clear that this Coalition has made improvements regarding both Oireachtas debates and committees. Hence (a) European Council summits are now preceded by Dáil statements by Enda Kenny, complementing the longer-established tradition of debates after such summits; and  (b) as regards Oireachtas committees, scrutiny work formerly unsatisfactorily concentrated in one ‘scrutiny committee’ has been ‘mainstreamed’ to various sectoral committees more expert in their individual fields.  In addition, this year, a parliamentary steering group on European Union affairs has had to be established in order to add much-needed cohesion.

Overall, however, there are arguably at least five important tasks the Oireachtas should perform: (1) providing a public forum for discussion of European Union issues (2) expressing policy views before European Union laws are formally drafted; (3) tracking developments when European Union laws are formally proposed; then (4) overseeing their implementation into Irish law once finally adopted. Lastly, the Oireachtas should also (6) oversee European Union policies which are advanced without legislation at all.

As regards (1) providing a public forum for discussion of European Union issues, Oireachtas committees do much good work, inviting speakers to discuss  topical issues. Frustratingly, however, much such work is unacknowledged, attracting public and media attention having proved an as-yet unsurmountable challenge.

As regards (2) expressing policy views before European Union laws are formally drafted, the Oireachtas has a relatively poor record. European Commission President Barroso  created a political dialogue process to give a voice to national parliaments at European Union level. But participation rates by the Oireachtas have been low. Three useful reports were sent to Europe in 2013 by the Agriculture Committee (regarding the CAP, sugar quotas and fisheries policy). Furthermore, the European Union Affairs Committee has also written a recent report on the European Union Youth Guarantee, and the Committee on Finance, Public Expenditure and Reform has also done other useful recent work. However, this work was rather exceptional: overall, Oireachtas reports on broad European Union issues are irregular and infrequent.

Is the Oireachtas better at (3)  tracking developments once draft European Union laws are formally proposed? While technically, it is true to say that all European Union draft laws are scrutinised by Oireachtas committees, this is not the full picture. Most draft laws are almost immediately dismissed as unworthy of ‘further’ scrutiny by the various sectoral committees. This approach is very frequently justified –  but whether it should be taken quite as often as it is at present is doubtful. Department officials are only exceptionally invited in to assist the tracking process. Furthermore, so-called Oireachtas ‘subsidiarity control’ powers conferred by the Lisbon Treaty remain almost wholly unused.

Oireachtas committees sometimes engage with government ministers before Council meetings in Brussels – but nowhere near as often as they should. At the time of writing the Council had met on 39 separate occasions this year. Ministers had met committees only 14 times concerning European Union affairs. Even assuming that all such committee sessions concerned Council business, this still leaves no accountability being demanded of Ministers as regards almost two-thirds of Council meetings.  It doesn’t help that Irish parliamentarians lack the ‘scrutiny reserve’ or ‘mandate’ powers which other national parliaments can deploy to rein in uncooperative ministers. However, the relative infrequency of invitations to Ministers seems to indicate pre-Council dialogue with Ministers is not the top priority for Oireachtas committees anyway.

As regards (4) overseeing the implementation of European Union rules into Irish law, the Oireachtas role here is largely a fiction. Whenever Irish implementing legislation is required, most European Union measures are simply implemented via the flourish of a minister’s pen. Technically, ministerial regulations can be annulled afterwards by the Oireachtas – but in forty years of Irish membership, this has never happened.

Many such measures are dry, technical instruments meriting no parliamentary attention – but some are not. To take one example, during the recent Seanad debate over the controversial implementation of European Union organ transplant rules by statutory instrument by Health Minister James Reilly, Minister Alex White openly acknowledged that the subject matter ‘manifestly’ merited ‘discussion and consideration in a parliament’. Notwithstanding this, the measure itself – 36 pages long with over 10,000 words of text – had been implemented without one word of parliamentary debate.

Finally, the Oireachtas does little in terms of (5) overseeing European Union policies which are advanced without legislation. This includes much of Europe 2020, Europe’s ten-year growth strategy.

Overall, notwithstanding ongoing gradual improvements and diligent European Union-related work by many individual TDs and Senators, the Oireachtas faces a Herculean task in getting European Union-related work performed optimally, with Dáil members in particular relentlessly pressurised into focus on constituency work to get re-elected. Depriving Oireachtas committees of the services of 60 other parliamentarians by abolishing the Seanad will hardly assist matters.

Dr. Gavin Barrett is a senior lecturer in the School of Law in UCD, a former Oireachtas parliamentary research fellow and has written a study of the Oireachtas role in European Union affairs published by the Oireachtas

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