1) Historical Context 4

U N I V E R S I T Y O F C O P E N H A G E N F A C U L T Y O F L A W

Review of Foreign Policy and External Relations

“Parliamentary oversight, involvement and input into a renewed Irish foreign policy”

Graham Butler

PhD Fellow

Written Submission

Oireachtas Joint Committee on Foreign Affairs and Trade

Dublin, Ireland

Thursday, 16th January 2014 2 3 Contents

1) HISTORICAL CONTEXT...... 4

Bunreacht na hÉireann...... 4

1996 White Paper...... 6

2) OVERLAPPING MANDATE...... 7

The European Union...... 9

Post-Lisbon...... 10

3) DEVELOPING THE JOINT COMMITTEE’S OVERSIGHT OF IRISH AND EUROPEAN FOREIGN POLICY...... 10

A) Engaging with Ambassador Designates...... 11

B) Foreign Affairs Council meetings...... 12

C) Locations of Foreign Representation...... 13

D) Extent of Global Representation...... 14

E) European Parliament’s Committee on Foreign Affairs...... 14

F) Time between Dáil terms...... 15

G) Involvement of other Government Departments...... 16

H) Committee Resources...... 17

I) Changes in EU Foreign Policy...... 19

4) FUTURE OF IRISH FOREIGN POLICY...... 20

5) CONCLUSION...... 22

6) BIBLIOGRAPHY...... 24

4 1)Historical Context

Foreign policy is executive dominated and is still not a productive area for democratic control. This applies worldwide and is not confined to any particular nation. Indeed, Lord has expanded at length regarding the often-irrational nature of foreign policy.1 It is because of this that parliamentary involvement and oversight is all the more important. Most foreign policy does not need to be legislated for in national parliaments in member states, which is a strong differential to other areas of public policy. Because of this, the Joint Committee on Foreign Affairs and Trade is in theory, more important than others.

On paper at least, the position of the Oireachtas according to Bunreacht na hÉireann would appear to be very strong.

Bunreacht na hÉireann

Articles 29.5 and 29.6 – International Relations

Article 29.5

1° Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.

2° The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.

3° This section shall not apply to agreements or conventions of a technical and administrative character.

Article 29.6

6 No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

1 Christopher Lord. “The Political Theory and Practice of Parliamentary Participation in the Common Security and Defence Policy.” Journal of European Public Policy 18, no. 8 (November 21, 2011). p. 1133

5 However, Ireland has one of the most highly centralised systems of politics within the EU. This, combined with a strong parliamentary whip providing a subservient parliament, it allows for a political environment where the Minister for Foreign Affairs and Trade of the day is more-or-less granted free-reign in a domestic sense to follow his or her own priorities through the Department. In recent times, “the involvement of national parliaments has been encouraged as a means of increasing the democratic legitimacy, the authority and the general responsibility of measures taken.”2 This would imply that the Minister for Foreign Affairs and Trade backed up by his or her Department, is as much dependant and reliant on the Joint Committee than the Joint Committee is to the Minister. It is important that neither the executive nor the legislature ever forgets this element.

This forthcoming review marks a potential new turn for Ireland’s foreign policy – the first since the then Tánaiste and Minister for Foreign Affairs, Dick Spring produced this first ever review in 1996. This was only three years since establishment of a permanent Joint Committee on Foreign Affairs within the Oireachtas. While the Oireachtas was late to the game in establishing a committee dealing solely with the issue of foreign affairs, the permanency of the Committee structures has now been cemented, and today, committees in recent years have had more administrative resources than they have ever had in the past.

This, the second ever review exercise, presents a significant opportunity for the Joint Committee on Foreign Affairs and Trade to have enhanced oversight of the executive branch. It affords it the prospect of being a more pro-active Joint Committee in its engagement and formulation of Irish foreign policy and more importantly, offers it to figure out a path forward for the interaction and engagement of the Oireachtas with Irish foreign affairs and external relations. As stated in the 2012 Work Programme of the Committee, it noted, “The Joint Committee on Foreign Affairs and Trade is committed to making a constructive contribution to the committee system in the Houses of the Oireachtas and to continue to assert the proper oversight and accountability role of the Legislature in respect of the Executive. It will endeavour to do this by properly exercising the functions and powers which have been conferred on it by both Dáil Éireann and Seanad Éireann.”3

2 Christopher Kruse. “Parliamentary Scrutiny in the United Kingdom Parliament and the Changing Role of National Parliaments in European Union Affairs.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 349 – 377. 1st ed. Dublin: Clarus Press, 2008. p. 349 3 Oireachtas Joint Committee on Foreign Affairs and Trade. “Work Programme 2012.” Houses of the Oireachtas, January 2012. http://www.oireachtas.ie/parliament/media/committees/foreignaffairs/JCFA%26T-Work-Programme- 2012.doc.

6 1996 White Paper

The Government in 1996, under Taoiseach John Bruton and Tánaiste Dick Spring, published the first ever White Paper on Foreign Policy entitled “Challenges and Opportunities Abroad.”4 The process got underway for this publication as early as 1994 with consultations sought from interested parties and NGOs, followed by public seminars held throughout the country in Universities. Indeed, the recently established Oireachtas Joint Committee on Foreign Affairs at the time made a submission.

The legal and political environment was of course very different to today. Ireland was about to assume the Presidency of the European Union which operated under the Treaty of Maastricht, long before the Treaties of Amsterdam, Nice and Lisbon. This was also before the Good Friday Agreement was reached – a significant area of foreign policy in its own right. The White Paper stated it sought to “encourage debate about all aspects of foreign policy, and to nurture a sense of public ownership of that policy.”5 It would therefore seem appropriate that national parliamentarians, most of whom are directly elected by the people, would also be thoroughly involved in this process with more influence.

Chapter 16 of the White Paper was devoted to “The Democratic Accountability of Foreign Policy”, which was recognition that oversight and involvement of Irish foreign policy and external relations is needed by the Oireachtas. This initiative by the Department, to demonstrate its commitment to the Oireachtas is commendable, but should be considered the norm. For the publication of the next White Paper, elements of parliamentary control could be scattered throughout the document in the variety of sections, as opposed to being concentrated into a small chapter at the conclusion of an extensive three hundred page document.

2)Overlapping mandate

4 Department of Foreign Affairs. Challenges and Opportunities Abroad: White Paper on Foreign Policy. 1st ed. Dublin: Government Publications Sale Office, 1996. 5 Ibid. p. 42.

7 With a drastic change in external action infrastructure at European level after the implementation of the Treaty of Lisbon, the parliamentary mechanisms must change as well – both at national and European Parliament level. Not only is foreign policy complex and vast, it is also a “moving target.”6 The Oireachtas has a role to play here if it chooses to exert itself far more than it ever has before. As Barrett notes, it is crucial parliaments exert “democratic control on the executive.”7 This in itself poses challenging questions for the Oireachtas, namely as it is kept under tight Government control. For example, the establishment of the Joint Committee on European Affairs was seen by Government at the time as an initiative of theirs, as opposed to the parliament.8

It is now commonly accepted that national parliaments like the Oireachtas are experiencing their own legislative competence being subservient to EU law, and experiencing having their once absolute legislative authority curtailed. This is especially true in the area of foreign policy that has seen the expansion of Common Foreign and Security Policy co-operation, as well as Common Security and Defence co-operation.

Oversight issues are not solely confined to Ireland of course. Members of the European Parliament would argue that they still, despite pushing for many years to develop new oversight skills, do still not have enough democratic control over the foreign policy of the EU. In fact, given the blend of intergovernmentalism and supranationalism of the EU, it makes it equally difficult for both national parliaments like the Oireachtas and the European Parliament to conduct proper oversight, and making it impossible for any single oversight body to oversee all elements of EU foreign policy, which encompasses Ireland. It is a shared out process where each institution, be it national or European, must play its part.

As mentioned already, the Minister within the Irish political context is relatively free to take initiatives that they choose to prioritise. However, they must heed attention to the role of the EU as it itself expands its influence in world affairs. Since the commencement of the Treaty of Lisbon in late 2009, this has set in train significant developments. For example, there is now the position of a High Representative of the European Union for Foreign Affairs who has a double-hatted approach of being a member of both the European Council with Heads of Government, as well as being Vice

6 Stephan Keukeleire, and Jennifer MacNaughtan. The Foreign Policy of the European Union. 1st ed. Basingstoke: Palgrave Macmillan, 2008. p. xvi. 7 Gavin Barrett. “Oireachtas Control over Government Activity at European Union Level: Reflections on the Historical Context and the Legal Framework.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 145 – 178. 1st ed. Dublin: Clarus Press, 2008. p. 146 8 Department of Foreign Affairs. Challenges and Opportunities Abroad: White Paper on Foreign Policy. 1st ed. Dublin: Government Publications Sale Office, 1996. p. 80.

8 President of the European Commission. Supporting this position is the newly established European External Action Service, the EU’s diplomatic corp, that is made of civil servants from the EU in addition to diplomats from all the various different member states.

The intergovernmentalism of the Common Foreign and Security Policy and the Common Security and Defence Policy pose challenges in their own right. There are two things to note here. Firstly, how is it even possible for a single parliament to adequately oversee what is a joined up approach from twenty-eight sovereign member states? Secondly, both these policies, CFSP and CSDP come under different Joint Committees within the Oireachtas, with the Common Security and Defence Policy coming under the oversight of the Oireachtas Joint Committee on Justice, Equality and Defence. This was demonstrated in 2013 when the parliamentary dimension of the Irish Presidency of the Council of the European Union co-hosted the Interparliamentary Conference for the Common Foreign and Security Policy and Common Security and Defence Policy in Dublin Castle.9

Given that the main responsibility for the implementation of these policies lies with the High Representative, it would therefore seem to be in the best interests of the Joint Committee to obtain and outline a new form of engagement with the European External Action Service, the diplomatic service of the EU who support the High Representative, similar to that of the regular engagement that the Joint Committee currently has with the Department of Foreign Affairs and Trade. Tonra notes there are many new things that Ireland and other similarly minded EU member states may be able to do here.10

The European Union

Some national parliaments in EU member states have made some widespread changes to how they handle their own oversight and scrutiny of their foreign policy and EU law. The extent to which this has occurs varies widely from member state to member state. The Irish Parliament, historically at least, has demonstrated disinterest in EU and international affairs. This can be down to a number of factors, including the electoral system. O’Halpin has said this may be as a result of Irish

9 “Irish Presidency of the Council of the European Union: Parliamentary Dimension.” Dublin Castle: Houses of the Oireachtas, 2013. http://www.parleu2013.ie/meetings/interparliamentary-conference-on-common-foreign-and- security-policy-cfsp-and-common-defence-and-security-policy-cdsp/#.UpdLRmRDu18. 10 Ben Tonra. The Department of Foreign Affairs and Trade’s Review of Foreign Policy and External Relations. Dublin: Houses of the Oireachtas, 2014.

9 parliamentary culture stretching back several decades.11 The Irish parliamentary process in all public policy areas, including foreign affairs, could be said to be a political arrangement rather than a constitutional or legislative obligation, other than voting on the annual departmental budget and voting through rare pieces of legislation in Select Committee.

On a brighter note, Ireland has been seen a model by the Scottish Government for how a small EU member state conducts its international relations and foreign affairs. Similar to the way Ireland maintains permanent representation in a multitude of international bodies and organisations, Scotland intends to follow this Irish model, alongside the likes of Denmark and Finland also.12 While the Irish system is by no means perfect (or is any), it demonstrates that other nations see the progressive and positive change that Ireland has created over time in conducting a foreign policy as a small EU member state.

European foreign policy too has had significant developments. While Ireland and the Oireachtas cannot be expected to oversee it alone or in its entirety, the EU as a whole has sought to “continue the tradition of almost exclusive deliberation and decision-making in the Council without direct parliamentary participation.”13 This goes for the European Parliament in addition to national parliaments. However, the Oireachtas can hold its own Minister for Foreign Affairs to account for his consenting actions taken in the EU. Ireland has the position where before Ministers have Council meetings with their European counterparts, occasionally engage with the Committee on their work at such Council meetings and have an exchange of viewpoints. This contrasts greatly with that of other countries, namely Denmark, who have the power over Ministers to “direct his or her position in the Council.”14 They also reappear afterwards to outline the developments and progress made.

Post-Lisbon

11 Eunan O’Halpin. “Irish Parliamentary Culture and the European Union: Formalities to Be Observed.” In National Parliaments and the European Union, 124 – 135. 1st ed. Frank Cass and Company, 1996. 12 Scottish Government. “Scotland’s Future: Your Guide to an Independent Scotland.” Scottish Government, November 26, 2013. 13 Daniel Thym. “Beyond Parliament’s Reach? The Role of the European Parliament in the CFSP.” European Foreign Affairs Review 11 (2006): 109 – 127. p. 111 14 Ben Tonra. “Democratic Oversight over the Irish Government in the Field of the Common Foreign and Security Policy.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 243 – 272. 1st ed. Dublin: Clarus Press, 2008. p. 252

10 As has been noted in the past, the Oireachtas has the potential to wield significant powers over the Government. This is to ensure the democratic accountability, control and oversight of the process. The Treaty of Lisbon has significantly altered the way in which national parliaments, like the Oireachtas, can engage in matters in European affairs, which is turn allows it greater influence in foreign affairs. Indeed, the Standing Orders of both the Dáil and Seanad had to be amended in light of the passage of the treaty in order to give full effect to it. Two protocols were attached to the Treaty of Lisbon that are of particular note here. The first is the Protocol on the Role of National Parliaments in the European Union and the second, the Protocol on the Application of the Principles of Subsidiarity and Proportionality (the ‘Early Warning Mechanism’).

However, these do not cover the role of the Oireachtas in its control of Irish foreign policy. This is solely a matter to be solved in Dublin between the legislative and the executive. The first step here is for the Committee to have an input into the formulation of the White Paper, with direct proposals, and for them to use the powers granted to them under legislation effectively after measures within the White Paper are implemented.

3)Developing the Joint Committee’s oversight of Irish and European foreign policy

The Treaty of Lisbon stated that national parliaments, such as the Oireachtas, should contribute actively to the good functioning of the Union.15 This includes the area of foreign affairs. The previous White Paper from the Rainbow Government stated in the 1990s that it recognises “that a greater role for national parliaments would contribute to bringing citizens closer to the process of decision-making”, but the Irish Government have done little in this regard for bringing the parliament, that it is derived from, into this line of practice. It should be pointed out however that the Government in question lost the General Election the year following the publication of this White Paper in 1997.

The Oireachtas in May 1993 established the Joint Committee on Foreign Affairs, which for two years incorporated the previous Joint Committee on Secondary Legislation of the European Communities, before becoming its own distinctive Joint Committee on European Affairs in 1995.

15 “ The Treaty on European Union.” Official Journal of the European Union, 2010. http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:en:PDF.

11 Today, the Joint Committee could grasp its influence over Irish foreign policy in a number of ways in contributing to this review, as at its essence, EU membership entails “a substantial shift of law- making power from national parliaments to the institutions” of the EU, including the Foreign Affairs Council that the Minister for Foreign Affairs and Trade is a member of.16 This section contains a mixture of both internal and external ideas as part of the review that is set to take place. Therefore, a number of proposals are set out, in no particular order, that can be discussed by the Joint Committee, to possibly be included in the submission to the Department.

A) Engaging with Ambassador Designates

Firstly, the Joint Committee could examine the possibly of holding public hearing with officials from the Department who have been appointed Ambassadors of Ireland to major partners, to begin with. This is standard practice is many other western democracies whereby parliament engage with the nominees of Government, prior to their appointment. While there are some, indeed many in Iveagh House who might choke at this idea, this is not dissimilar to the current Government commitment to have Chairperson Designates of state boards and public bodies appearing before the relevant Oireachtas Joint Committee prior to their appointment. Since 2011, some of the Joint Committees of the Oireachtas have been holding public hearings with Ministerial appointees as Chairpersons of state boards and public bodies, as per Government policy, but this practice is not enshrined within legislation. While it is not a confirmation process and more of an exchange if views, it is a step in the right direction for the Oireachtas to be involved at these early stages, prior to Chairpersons taking up their positions.

The Joint Committee on Foreign Affairs and Trade could use a similar process for appointed Ambassador Designates of Ireland, before taking up their posting abroad, subject to the acceptance of their respective host countries. Ireland at present has over fifty Embassies worldwide, in additional to a number of Consulates and multilateral missions to international organisations.

There are some practical difficulties that would have to be overcome however. Given the number of Ambassadors, it is probably not practical at this time for the Joint Committee to handle all of these

16 Christopher Kruse. “Parliamentary Scrutiny in the United Kingdom Parliament and the Changing Role of National Parliaments in European Union Affairs.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 349 – 377. 1st ed. Dublin: Clarus Press, 2008. p. 351

12 engaging discussions in public session. The rotation of Ambassadors also generally occurs in August, in the middle of when the Oireachtas is adjourned for the summer. Also, many of the rotations often occur all at the same time. However, a good start to this process would be for the Joint Committee to engage with a selection of Ambassador Designates from identified important countries to Ireland or important international organisations that Ireland is a member of, such as the EU or the UN. Depending on the success of this new initiative with some of the more important global partners to Ireland, this could be examined further, with a view to expanding its operation and further cementing this new way of operation.

B) Foreign Affairs Council meetings

While there is already a structure in place for getting the Minister of the day in before the Joint Committee prior to his or her attendance at Foreign Affairs Council (FAC) meetings in Brussels, Luxembourg, or the EU member state holding the EU Presidency, there is not done for all meetings. Further to this, the Committee could implore the Department during its review to ensure that the Minister of the day make all necessary efforts to come to the Joint Committee after the FAC meetings as well, to brief and update the Committee on decisions made, compromises reached, and other related developments. This latter proposal for meeting the Joint Committee after an FAC meeting may be time-depend however, given the Committees other priorities. This will also pose a challenge to the Joint Committee, given that Oireachtas Committees in this Dáil are in session more than ever before, and its continued overlap with plenary sessions of the Dáil and Seanad.

At present, Ministers are under no obligation to take the advice of the Joint Committee on board when they even do appear. Despite this, appearing before the Joint Committee prior to attending the FAC is something that the Committee could insist that the Department of Foreign Affairs and Trade include in its review for the democratic empowerment of Ireland’s external relations.

C) Locations of Foreign Representation

13 It has been reported in The Irish Times that the Department is considering a number of new diplomatic missions for Ireland to open in the near future.17 These include new embassies in Chile, Colombia, Croatia, Indonesia and Thailand, as well as new Consulates in Austin, Texas, Hong Kong and Istanbul, Turkey. Honorary Consulates have also a role to play in Irish representation around the world. In the past two and a half years of this Government, it has appointed Consuls in Australia, the Bahamas, Botswana, Canada, India, Iran, Japan, Kazakhstan, Kenya, Nepal, Nigeria, Pakistan, Saudi Arabia, Turkey and the United States. Where Ireland does not currently have a presence, Irish people as citizens of the EU may avail of consular assistance from other EU members where Ireland has no diplomatic mission. This representation around the world is crucial for a number of reasons, including the promotions of Ireland’s values abroad, consular services for Irish citizens, engaging with the sizable diaspora and better focus on Ireland’s trading partners.

The Department of Foreign Affairs and Trade has itself admitted that Irish Embassies and its network have not kept up to speed with potential new economies.18 The Joint Committee can have a role here. Working alongside the Department, members of the Committee under a reviewed Irish foreign policy could have a more effective role in identifying the precise locations around the world where Ireland should have a physical presence. Indeed, a cross-party delegation from the Joint Committee recently returned from a visit to the Islamic Republic of Iran, a country where Ireland ended its permanent diplomatic presence in 2012.1920

To date, all diplomatic missions and postings are drawn up by the Department of Foreign Affairs and Trade to be approved by Government without parliamentary input or oversight. This is something that could change if the Committee was to express its wish to be involved in such important decisions.

17 Denis Staunton. “Irish Foreign Policy Review Must Reflect Changed Circumstances in the World.” The Irish Times. November 16, 2013, sec. Opinion. http://www.irishtimes.com/news/world/irish-foreign-policy-review-must-reflect- changed-circumstances-in-the-world-1.1596614. 18 Department of Foreign Affairs and Trade. “Comprehensive Review of Expenditure by the Department of Foreign Affairs and Trade: Submission to the Department of Public Expenditure and Reform.” Department of Public Expenditure and Reform, 2011. http://per.gov.ie/wp-content/uploads/Department-of-Foreign-Affairs.pdf. 19 Houses of the Oireachtas. “Iran Visit by Foreign Affairs Committee to Provide Trade Impetus.” Press Releases, January 8, 2014. http://www.oireachtas.ie/parliament/mediazone/pressreleases/name-19938-en.html. 20 Embassy of Ireland, Iran. “Ireland in Iran.” Important Notice, February 23, 2012. http://www.embassyofireland.org/home/index.aspx?id=46343.

14 D) Extent of Global Representation

Ireland being a small EU member state has a modest, but small diplomatic presence around the world for its relative size. When you look at comparable EU member states in terms of population, strategic interests and obligations, Ireland’s Foreign Service could be even said to be slightly smaller than it should be. Furthermore, Irish diplomats on secondment to the European External Action Service number a total of seven, just 2.7% of the total number of diplomats working at the EEAS.21 Despite some Irish nationals who were EU civil servants getting some senior postings within the EEAS, when the first round of EU Ambassadors under the service were announced in 2010, not a single Irish diplomat from the Department of Foreign Affairs was appointed to a senior Ambassadors role in any of the EU Delegations around the would. The Joint Committee could have a role here. For example, through parliamentary liaison with the European Parliament’s Committee on Foreign Affairs, which would have greater oversight on the High Representative and the EEAS from their position in the only democratic-elected institution of the EU.

E) European Parliament’s Committee on Foreign Affairs

As part of this review, the Joint Committee has the opportunity to cement relations with the European Parliaments Committee on Foreign Affairs (AFET). The Joint Committee on European Union Affairs, another Committee of Houses, currently operates a procedure whereby all Irish MEPs are ex-officio members of the Committee. While it is not always possible for any of the MEPs to attend given their commitments in Brussels, Strasbourg and their constituencies, it provides an important link between the workings of the Oireachtas and the European Parliament.

This is an area that could go up for a review at the Joint Committee on Foreign Affairs and Trade. Given that EU affairs now transcend the Joint Committee on European Union Affairs and now feed into every sectoral Committee of the Oireachtas, there is now room for each Joint Committee to open up their membership and allow ex-officio membership to Irish MEPs who are a member of the corresponding committee of the European Parliament. For example, if an Irish MEP is a member of

21 Tánaiste and Minister for Foreign Affairs and Trade. Department of Foreign Affairs and Trade: Diplomatic Representation Issues. Dáil Éireann: Houses of the Oireachtas, 2013. http://oireachtasdebates.oireachtas.ie/debates %20authoring/debateswebpack.nsf/takes/dail2013091800054#WRE01100.

15 European Parliament Committee on Foreign Affairs, he or she should be granted ex-officio membership of the Oireachtas Joint Committee on Foreign Affairs and Trade.

There are presently no Irish MEPs either members or substitute members of European Parliament’s Committee on Foreign Affairs during the current 2009-2014 parliamentary term.22 However, after the European Parliament elections in May 2014, this may change, with Ireland potentially securing a seat on the Committee. This is a procedure the Committee could allow for as part of the review. Indeed, it could also feed into wider proposals at the Working Group of the Committee Chairmen to filter this idea down into all of the sectoral committees of the Oireachtas.

There is also the potential for the Oireachtas delegation to the European Parliament to be increased from the current status of one official who covers all policy areas. This could be done incrementally by appointing additional officials to deal solely with particular Committee areas, with initially focusing them on the more important committees for Irish interests.

F) Time between Dáil terms

It is natural for the number of Committee meetings to decline in the run-up to General Elections, particularly for Committees who have a large number of members who are seeking re-election to their seats. This occurs for both Houses whose elections are roughly two months apart. As a result, there is a noticeable decline in the work-rate of all Oireachtas Committees during such periods. This is problematic as the “business of neither the Government nor the European Union comes to a halt during such times.”23 Proposals need to be further examined and fleshed out as to how the scrutiny and oversight of Irish foreign policy can continue during such periods.

Secondly, after the formulation of a new Dáil and Seanad, it can still take some time for the Oireachtas in the new term to get the committee structures set up. While this is an issue that affects all sectoral Committees of the Oireachtas, areas other than foreign affairs can go checked via other means through the two chambers. As foreign affairs is not primarily not based in legislative acts of parliament, this area of public policy can go for months without being really overseen in an

22 European Parliament. “Committee on Foreign Affairs: List of members.” European Parliament, November 27, 2013. http://www.europarl.europa.eu/committees/en/afet/pdf.html. 23 Gavin Barrett. “Oireachtas Control over Government Activity at European Union Level: Reflections on the Historical Context and the Legal Framework.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 145 – 178. 1st ed. Dublin: Clarus Press, 2008. p. 178

16 engaging way for months. As previous Government’s themselves have noted, “legislation on matters associated with foreign policy is very small, and the number of treaties coming before the Oireachtas is not great.”24

The review of foreign policy should encompass potential changes for the Joint Committee to have year-round oversight. This can be reflected in amendments to the Standing Orders of both Houses to ensure more permanence and redevelopment on the establishment of a new Dáil, and to be joined by the Seanad shortly after. Again, this change should be considered during the review process for the benefit of the Joint Committee, thus reconstituting more power into the hands of the parliamentary element, the Oireachtas Committees, and away from the executive.

G) Involvement of other Government Departments

During the last review of Irish foreign policy as previously mentioned, the White Paper sought input from a range of other Government Departments. For example, trade at the time came under the then Department of Enterprise and Employment. Irish foreign policy has to be financed, so it has input from the Department of Finance, and the promotion of tourism and culture also require collaboration with various Government Departments. As O’Brennan notes, it is not just the Department of Foreign Affairs that this Irish foreign policy review entails, it is a more plural process.25 As the lead actor in this field, the Joint Committee can initiate a process of bringing together other sectoral committees of the Oireachtas to consistently feed into a renewed Irish foreign policy, once the new White Paper is brought forward.

The Taoiseach, as Head of Government, also has an important role to play in Irish foreign policy, as noted by Dorr in front of the Joint Committee.26 Abroad, the Taoiseach is the highest representative of Government and accordingly, has a strong input into the formulation of Irish foreign policy and its delivery. As it stands, legislation emanating from the Department of the Taoiseach is subject to the scrutiny of the Select sub-Committee of the Committee on Finance, Public Expenditure and Reform. While this may be ideal for some areas of the Taoiseach’s Department, it is not for all.

24 Department of Foreign Affairs. Challenges and Opportunities Abroad: White Paper on Foreign Policy. 1st ed. Dublin: Government Publications Sale Office, 1996. p. 332. 25 John O’Brennan. “Government, Parliament and Civil Service.” In Irish Foreign Policy. 1st ed. Dublin: Gill and Macmillan, 2012. p. 87 26 Noel Dorr. The Department of Foreign Affairs and Trade’s Review of Foreign Policy and External Relations. Dublin: Houses of the Oireachtas, 2014.

17 Given that ‘foreign policy’, similar to that coming of the Department of Foreign Affairs and Trade can also be brought through by the Department of the Taoiseach, there is some merit to having this Select sub-Committee having a clause attached to their oversight, that it be transferred from Committee on Finance, Public Expenditure and Reform to the Committee on Foreign Affairs and Trade, where appropriate.

While this could be construed as a mere technical matter than can be solved by the Oireachtas Committees alone, there is also a matter for the upcoming White Paper. Seeking the co-operation on a matter such as this from both the Department of the Taoiseach and the Department of Foreign Affairs and Trade is essential, and a commitment to examine this issue further is crucial in order for the Joint Committee to have jurisdiction in the future. Without such, a large gap in the scrutiny of Irish foreign affairs could emerge in the future, if the Department of the Taoiseach were to become more active in this area.

H) Committee Resources

It would be fair to say that the committee structure of the Houses of the Oireachtas have increased significantly over time. In many EU member states, parliamentary committees “have become almost as influential as individual ministries within policy-making.” 27 Sadly, this is not the case for the Oireachtas. While not solely attributed to any one particular factor, a sizable amount of this can come down to a lack of resources available to the Joint Committee to conduct its oversight and investigative work. The Chairman of the Joint Committee on Foreign Affairs and Trade noted in 2013 that not having an advisor was a “hindrance to the committee.”28 However, this has since been resolved with a former Irish diplomat now advising the Joint Committee on a temporary basis.

Work has begun on improving this resourcing issue. For example, there is now a well-placed Oireachtas Library and Research Services that are available to all Committees and members of the Oireachtas in their individual capacity, to carry out work that is required. It is obvious that with their additional backup of research and expertise, that the Joint Committee can be in a position to

27 John O’Brennan. “Government, Parliament and Civil Service.” In Irish Foreign Policy. 1st ed. Dublin: Gill and Macmillan, 2012. p. 91 28 Deputy Pat Breen TD. Business of Joint Committee. Dublin: Houses of the Oireachtas, 2013. http://oireachtasdebates.oireachtas.ie/Debates %20Authoring/DebatesWebPack.nsf/committeetakes/FOJ2013071000002?opendocument.

18 make proposals of its own. In order to be effective however, these proposals must be capable of being legitimately adopted by the Minister, rather than the Department’s own proposition. Continuing to address the matter of further resources, permanent secretariats comprised of civil servants now support the Joint Committee in their work, ensuring smoother transitions between each Dáil term. Compared to comparative countries of equally smaller size however, Ireland still lags behind. To combat this, means of assistance could be provided by the Department of Foreign Affairs and Trade to have greater input into Irish foreign policy in the future. Mitchell has stated the “usefulness of Oireachtas (and Dáil) committees would be transformed by the availability of reference information.”29

Working collaboratively with the Joint Committee, with greater resources afforded it to, this would allow the Joint Committee to have a much larger capacity for independent initiative and thought. How this would work would have to be carefully drawn through and debated fully. Palpable solutions are available but not limited to, additional staff from the Department of Foreign Affairs and Trade on secondment, specialised civil servants of the Oireachtas, politically appointed staff to the Chair of the Committee, the Committee as a whole, and externally hired consultants. It is not surprising that numerous sectoral Oireachtas Committees are calling for more resources, given that they are meeting more frequently during this Dáil term than ever before and often given only short deadlines to contribute to issues by Ministers and their Departments. For example, this public consultation phase of the Review of Ireland’s Foreign Policy and External Relations was only formally announced in the last quarter of 2013, with a deadline of early February 2014 for submissions. Given some committees heavy work schedules, this can lead to other important issues to be set aside to meet the more immediate needs of the Department that it shadows. Between 2013 and 2014, the budget for external consultancy by Oireachtas committees has dropped by 78%, thus making it more difficult for Joint Committees, like Foreign Affairs and Trade, to maintain the worthiness of inputs and oversight it is there to do.

It is understandable that additional resources to the Joint Committee may not be immediately forthcoming give the current public finances. Indeed, the number of staff employed by the Houses of the Oireachtas Commission has fallen significantly over the past number of years. However, times of such constrained budgeting will not always be the case. The Joint Committee, when appropriate, could seek further allocations to fund these additional resources when they become

29 Gay Mitchell. By Dáil Account: Auditing of Government, Past, Present and Future. 1st ed. Dublin: Institute of Public Administration, 2010. p. 53.

19 available. Given the very rare occasions where reviews of Irish foreign policy do occur, it is something that should be considered for the longer-term gain of the Joint Committee.

I) Changes in EU Foreign Policy

While not immediately forthcoming, there is likely to be Treaty changes in Europe at some point in the future. At this juncture, we do not know of any serious proposals, considerations, discussions and talks that have occurred on a formal basis. Indeed, an Intergovernmental Conference (IGC) has not been called yet. However, when such a move does take place, the foreign policy of the European Union, which will have effects on Irish foreign policy, will definitely need to be a part of this change.

The Constitutional Treaty, which ultimately failed after being rejected by French and Dutch voters in 2005 proposed substantial changes to EU foreign policy. Following this, the Reform Treaty, later known as the Treaty of Lisbon was formulated, which watered down many of these changes, but still advanced them somewhat.

proposed to extend greater influence on the HRVP, to establish the position as the EU’s Foreign Minister.

In line with this review, the Joint Committee must be aware of these proposed changes when they do eventually occur will have knock-on implications for Ireland and its conduct of foreign policy. Early engagement with the Department of Foreign Affairs and Trade as well as the key stakeholders in Europe, particularly the Commission and the EEAS will be crucial so the Joint Committee can pre-empt these changes and adjust its scrutiny and oversight procedures at an early stage in the process.

For example, when a new Treaty is being drafted, there are likely to be attempts to upgrade the role of the High Representative of the Union for Foreign Affairs and Security Policy to that of an EU Foreign Minister. This role, allowing the EU a full foreign minister in its own right could potentially have knock-on effects for Irish foreign policy. Furthermore, the competences on the Minister for Foreign Affairs and Trade could be restricted, as the EEAS expands.

20 4)Future of Irish foreign policy

It is critically important that with the Government making decisions on Irish foreign policy, this matter must also be counteracted with parliamentary participation in the formulation of proposals, allowing the Oireachtas to “scrutinise decisions in the foreign affairs sphere.”30 This is opposed to many past Governments views that the Oireachtas should be kept just ‘fully informed’ of developments.

The Joint Committee at present exercises oversight through its regular, weekly meetings when the Houses are in session. The meetings focus on a range of issues within its competence and involve regular decisions with the Government Minister, either of the two Ministers of State and all their respective civil servants. Little used powers of the Committee include engaging specialist assistance for projects comparable to other committees, and the drafting of legislative proposals for initiation in either of the Houses. However, scrutiny has come a long way from times previous, particularly regarding scrutiny of Communiqué and Joint Committee contributions towards political dialogue with the European Union. The Chair of the Working Group of Oireachtas Committee Chairmen has said “1,000 EU proposals come before committees each year.”31 The question is, how does the Joint Committee improve the working arrangements and to align this further with the Department of Foreign Affairs and Trade for enhanced oversight? While it is not a real prospect for Ireland to conduct oversight and be involved to the same extent as much large member states in their own foreign policies, it is capable of doing much more within the current parameters of its working environment.

It is also the case that it is not just the Department of Foreign Affairs and Trade involved in foreign policy and external relations alone, as previously mentioned. In 2011, a Government decision allowed for the transfer of much of the EU Affairs Division of the Department to that of the Department of the Taoiseach.32 This decision has far-reaching consequences for the Joint

30 John O’Brennan. “Government, Parliament and Civil Service.” In Irish Foreign Policy. 1st ed. Dublin: Gill and Macmillan, 2012. 31 David Stanton. “It Is Unfair to Say Oireachtas Committees Merely Rubber-Stamp EU Legislation.” The Irish Times. September 6, 2013, sec. Opinion. http://www.irishtimes.com/news/politics/oireachtas/it-is-unfair-to-say-oireachtas- committees-merely-rubber-stamp-eu-legislation-1.1517844. 32 An Taoiseach. Department of the Taoiseach: Departmental Functions. Dáil Éireann: Houses of the Oireachtas, 2013. http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2013092400058? opendocument#WRF00350.

21 Committee as one part of the Department it oversees has now transferred to another Government Department, the Taoiseach’s, that have no Oireachtas Committee directly overseeing it. The Taoiseach has stated that the changes were as a result of “the evolution of institutional structures and practices following the entry into force of the Lisbon Treaty” and that “systems are in place to ensure effective coordination and communication between the two Departments” [Department of Foreign Affairs and Trade and the Department of the Taoiseach].33 However, he does not mention its implications for Oireachtas Committee oversight. With this blurring of the lines between the two Government Departments, here lies a clear opportunity for the Joint Committee. In contributing to the Review of Foreign Policy and External Relations, it should state that on relevant matters, the Joint Committee should have the opportunity to engage with officials from the Department of the Taoiseach also, in addition to that of the regular Department of Foreign Affairs and Trade.

5)Conclusion

This process of engaging in this Irish foreign policy review is a win-win for the Joint Committee. In seeking greater co-ordination between itself and the Department, the alignment will serve the better interests of the Joint Committee, parliamentary democracy and the people of Ireland it serves. From exploring the practices of the democratic accountability of Irish foreign policy from the last White Paper in 1996 and comparing them to today’s activities, on paper, they do not appear to be all that different. Because of this, in my view, it is critical that the Joint Committee avail of this rare opportunity to have an input into this review and ensuring that more oversight mechanisms are provided to the Committee, both before and after executive decisions are taken by the Minister and the Government collectively in matters of foreign affairs, from now and into the future.

McDowell states that it is in the hands of the Oireachtas and its Joint Committees to “develop the undoubted potential of the system of Oireachtas scrutiny.”34 Tonra also agrees with this stating, “the potential of the parliamentary committees had not yet been fully exploited.”35 In agreeing with this,

33 Ibid. 34 Michael McDowell. “Democratic Control over Governmental Action in European Matters: The Example of Justice and Home Affairs.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 179 – 203. 1st ed. Dublin: Clarus Press, 2008. p. 203 35 Ben Tonra. “Democratic Oversight over the Irish Government in the Field of the Common Foreign and Security Policy.” In National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, 243 – 272. 1st ed. Dublin: Clarus Press, 2008. p. 249

22 it should be added that while this is well, the effective cooperation of the Department of Foreign Affairs and Trade is also necessary. There are cumulative challenges, but none that can’t be overcome. In the past however, the previous Fine Gael-Labour Government, the Rainbow Coalition, stated that “it would be appropriate for the Oireachtas and other national parliaments to formulate their own ideas” regarding an increased role in both foreign and European affairs.36 Because of this, it is vital that this Joint Committee on Foreign Affairs and Trade have an input into this review, while also initiating its own proposals from its current position.

In addition to some of the potential measures outlined, there are numerous other ways, through its own initiative and through both the Department of Foreign Affairs and Trade, that the Committee could have further influence into Irish foreign policy into the future. The gathering a number of witnesses for a number of public hearings, it has provided a fruitful discussion for how the Joint Committee will conduct its scrutiny in the future, post the implementation of the review. Without such a submission from the Joint Committee, the Department of Foreign Affairs and Trade will be in a position to conduct the Irish foreign policy review and implement it, without providing any further scrutiny or oversight mechanism for the Joint Committee that currently exists at present.

Enhancing parliamentary oversight of Irish foreign policy is an essential component for this review. As it stands, the Oireachtas in foreign affairs continues to be the servant of the Government. While it might not be in either the executives or parliaments interest for the Oireachtas to become its master, a more reciprocal relationship is in the interest of all. After all, it is a reasonable assertion that lawmakers should be able to conduct oversight of the law or treaties that they themselves either created, voter for or even assented to, as well as the actions of the executive that it supports.

36 Department of Foreign Affairs. Challenges and Opportunities Abroad: White Paper on Foreign Policy. 1st ed. Dublin: Government Publications Sale Office, 1996. p. 114.

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