EU asylum pact is in danger of being rushed through without scrutiny

There is a massive black hole in Ireland’s legislative relationship with the European Union. Our parliamentary committees do not effectively monitor EU legislative developments in advance of their enactment at EU level. Nor do our parliamentary committees effectively oversee the transposition or non-transposition of EU decisions into domestic law by regulation.

A recently established Seanad oversight committee is facing significant resistance from the executive arm of the State in discharging its very minimal functions in relation to the execution and non-execution of transposition measures, including a claim that draft statutory instruments are confidential and may not be disclosed to the public.

There is an almost complete disconnect between the Oireachtas and the EU legislative process – a disconnect that is apparently treasured by the executive arm of the Irish State. There was a time when Irish ministers – myself included – routinely briefed Oireachtas committees in advance of EU Council meetings on the agenda items and on the approach being taken by Ireland in relation to such items. That degree of real-time interaction between members of the Oireachtas and the EU legislative process has all but evaporated.

While members of the European Parliament are involved in the EU legislative process to a far greater extent than when I was a minister, the clear intention of the EU treaties was that there would be a close relationship and interaction between the EU parliament and the member state parliaments.

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Row over plans to opt in to EU pact on migration breaks out at Oireachtas justice committee

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We are now confronted with the question of whether Ireland should exercise a constitutional option to participate in the set of EU regulatory laws flowing from the EU Pact on Asylum and Migration.

In order for Ireland to legally opt in to the obligations contained in the regulatory framework underpinning the pact, the matter has to be the subject of independent decisions by resolution separately taken by each Houses of the Oireachtas under Article 29 of the Constitution. The Government plan is that each house would refer the matter to the Joint Oireachtas Committee on Justice – consisting of TDs and Senators – to have it examined, and to defer any decision until it receives a report from that committee (of which I am a Seanad member). That would be grand in theory – and in practice – if the joint Oireachtas committee intended to carefully examine the issues involved and to scrutinise in public the implications of an opt-in by Ireland. Such scrutiny would, you might imagine, entail receiving evidence of the likely consequences for asylum seeking and migration flows into Ireland and our legal obligations arising from an opt-in by Ireland.

A report by the joint committee – prepared on the basis of the public reception of evidence and submissions – would assist the democratic process and members of the Oireachtas in performing a solemn duty under article 29 of the Constitution to decide whether or not to voluntarily bind the State constitutionally to the measures set out in the proposed regulations. These would include obligations in burden-sharing of would-be migrants crossing the EU’s external borders. It is by no means clear whether and to what extent the flow of asylum seekers in Ireland,– the vast majority of whom have previously successfully crossed the EU’s external border elsewhere – and the State’s capacity to respond effectively would be affected. Already, the “new normal” of up to 15,000 international protection applicants annually envisaged by Minister for Integration Roderic O’Gorman – or the 20,000 for which Ministers have reportedly been told to prepare – seems completely unsustainable

Such a parliamentary scrutiny process, if properly conducted, would hugely assist the Irish people – the sovereign power in the State – in understanding the issues. It would also make clear the legal and constitutional consequences and the likely social and economic impacts of any Irish decision to opt into the new regulatory framework – which would have effective constitutional status in Ireland, and whose meaning falls to be decided by decisions in the Court of Justice of the European Union in Luxembourg. Would the regulations be amendable later by qualified majority voting or by unanimity?

But, as things stand, no such process is envisaged. The present indications are that the Government wants to have a single half-day session in which Minister for Justice Helen McEntee would “brief” the joint committee on the opt-in decision and answer questions thereon to the best of her abilities. There would be no other witnesses or evidence.

Given that Ms McEntee is already committed to the pact and to opting into the regulatory framework, that envisaged type of scrutiny approaches the risible. It defeats the constitutional safeguard in article 29 concerning opt-ins by Ireland being dependent on separate resolutions of the Houses of the Oireachtas. It is a recipe for the repetition of the recent rubber-stamping of the referendum bills without constitutional pre-legislative scrutiny – except this time the people have no final say by referendum. There is no rush on our collective right to make a considered constitutional decision on a proposal with potentially radical consequences.