Speech on EU Scrutiny In Government Bill

First of all I would like to thank Senator Daly for this considered contribution and for drafting the EU Scrutiny and Transparency in Government Bill. I believe that the intent does contain a lot of merit, and that the idea of the Seanad providing oversight and scrutiny on European legislation is one that should happen, and that potentially one or possibly two blocks of time per week should be set aside for particular pieces of European legislation, which themselves would be selected by members of the Seanad, perhaps via a mechanism similar to that of adjournment motions.

However, while the intent of Senator Daly’s bill is easy for me to agree with, the practicalities pose difficulties at this stage. The Scutiny of Statutory Instruments Committee, which it is proposed would make arrangements for the monitoring and scrutiny of all draft statutory instruments laid before the Seanad and EU legislative proposals and then also would, in respect of each measure, within 21days of the date of laying of the draft measure, report its conclusions and recommendations to the relevant Minister of the Government, could be a useful mechanism, however, there would need to be a consideration in terms of both the size and composition of this Committee.
It is true that the number of EU laws and the speed at which they are being introduced is dizzying, and barely a week passes by without some new bizarre law making it into the media, and it is true that we definitely do need some national oversight here and that the Oireachtas and – in particular – the Seanad can play a crucial role, I feel, in the scrutiny of this legislation. In 2012, there were 590 Statutory instruments, 52 EU Directives and 1270 EU regulations – or approximately 2000 items which would need to be reviewed. This is broadly in line with the average for the last fifteen years.

I’m not sure that a committee of seven people reviewing 2,000 items and presenting their considerations before the relevant Minister wouldn’t put undue strain on the resources and capabilities of the seven Senators serving on this committee and, indeed, whether or not it would require extra resources as a consequence – or perhaps an enlarged membership between whom the load could be shared a little more evenly.

Currently, the EU is a driver of a great many important consumer and healthcare regulations, and I would be concerned that this committee of seven people would become a “one-stop shop” for lobbyists and those who wish to interfere in the process in order to try and slow down the progress of vitally important laws. Many of our contentious debates relating to alcohol, smoking and abortion have opened our eyes right across the Seanad to the power of lobbyists and to how aggressive lobbying can be. This could be intensified further with the introduction of this Bill, I worry.

Further to this, as the Taoiseach highlighted before this house yesterday, any proposals on the future role of the Seanad must dovetail with the Government’s programme for reform of Dáil Éireann and must respect the constitutional role of Seanad Éireann as well as Dail Eireann. This Bill is not, in my opinion, compatible with that goal.

In addition, the proposals in the Bill pre-empt the planned process of consultation with Party Leaders on the future role of the Seanad following the Referendum. This process has now been announced and needs to proceed with the agreement of all party leaders before any further Bills on Seanad reform should proceed.

More alarmingly perhaps, the Bill proposes to insert amendments into the Statutory Instruments Act 1947 which demonstrates that the proposal is much wider than EU measures and could potentially cover a number of SI’s unrelated to EU measures. In this respect, it would need substantial redrafting in order to be acceptable, and it is my belief that measures on EU scrutiny will be proposed and set forth during the consultation between party leaders on the reform of Seanad Eireann.

In addition, it has to be said that the proposals in the Bill are very similar to those in Senator Quinn and Zappone’s Seanad Reform Bill 2013. It must be remembered that the Quinn-Zappone Bill was not opposed by Government at second stage in May in the hope of bringing about debate in the lead-in to the Referendum, which it did, as it focussed minds on what kind of reform we could expect. Looking more closely, at the specific proposals on the table, a preliminary assessment suggests that the proposals in the Bill are flawed from a legal perspective and would not lead to an optimal scheme for EU scrutiny.

For instance, the Bill proposes a 21 day scrutiny reserve for the Seanad without parallel powers for the Dáil while it also proposes to establish a parallel Seanad Committee system – comprising two standalone Seanad Committees of 7 members each – to scrutinise draft EU legislation and statutory instruments. These functions have already been specifically delegated to Joint Oireachtas Committees, on which Senators sit as full members.

Of course, there are a range of opportunities for the Seanad – and Senators – to increase engagement on EU issues within the current framework and without the need for legislative change.

While Committees are best-placed to carry out detailed scrutiny work, the Seanad Chamber provides a high profile public forum in which to debate Committee reports. The emphasis which the Government is placing on increasing Committee effectiveness on EU legislation and statutory instruments can be expected to result in an increased number of Committee reports and recommendations to the Houses. A number of EU scrutiny reports and political contributions were published by Committees in 2012 and laid before the Houses, none of which were debated by either House. Through their membership of Joint Committees, Senators can play a lead role in advocating better engagement in EU scrutiny and by encouraging Committees to bring measures to the floor of the Houses for debate.

The Seanad can also debate motions for reasoned opinions from Committees on compliance with subsidiarity (the so-called “yellow card” under the Lisbon Treaty). There have been two such motions so far in 2013, neither of which has been debated. The Proposal for a Directive establishing a framework for maritime spatial planning and integrated coastal management was taken without debate on 9 May, and the Proposal for a Regulation on the establishment of the European Public Prosecutors Office is due to be taken without debate on 24 October.

The Seanad can also debate the EU Commission’s annual work programme. The Commission published its 2014 work programme on 22 October, which outlines the key areas of focus in the lead-in to next year’s European elections. Joint Committees will select their 2014 scrutiny priorities from this work programme and the Joint Committee on EU Affairs will publish them in the form of a report to the Houses. Again, this report provides a vehicle for debate for the Seanad.

In all, while I believe that the aspiration of Senator Daly’s Bill strikes the right chord, the practicalities – such as the size of the proposed committee, the legal question marks over the 21 day limit, and the timing – ahead of the consultation between party leaders – unfortunately mean that we will be opposing this Bill, however, it is worth noting that we can do a great deal more on EU scrutiny without legislative change, and we should, I believe, continue to set forth proposed alternatives in a similar spirit to this Bill in order to ensure that the Seanad has a strong role in EU legislative scrutiny.

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