The lack of supervision by the Oireachtas of ministers participating in European institutions "must be described as the most singular failure of any institution of this State since its foundation", said Mr John Rogers SC.
There has been no structured parliamentary debate on the adoption of a decision on the proposed European Arrest Warrant, the former attorney general told a meeting of the Institute of European Affairs in Dublin last night.
Yet if this became law as a result of a framework decision by the EU Council, as was proposed, it would effectively replace our existing extradition arrangements with Europe with the concept of the mutual recognition of court decisions by member-states. This was a radical departure from the European Extradition Convention of 1957, he said.
A final draft of a council framework decision on this was agreed recently, and if it was adopted under Article 34 of the Union Treaty it would be binding on member-states, he said. Would this entitle the Minister to repeal the Extradition Acts, he asked.
"Assuming that the Minister is entitled so to do, is it right that he should do so in the absence of a full plenary debate in the Dβil and Seanad?" he asked, pointing out that those two chambers enacted the legislation. "It may be that after that decision is made there will be no parliamentary procedure legitimating the adoption by Ireland of the framework decision," he said.
Mr Rogers said this proposal was an important example of the problem of the democratic deficit in relation our membership of the EU.
He pointed out that, as a result of successive treaties, voted for by the electorate, various decisions which changed Irish legislation could come about through the participation of ministers and officials in the Council of Ministers in Brussels. Mr Rogers made a similar point in an article in The Irish Times in the lead-up to the Nice referendum.
"If one looks at the history of decision-making within the Community it is clear that the Oireachtas has abdicated its right to supervise and control ministers in their performance of law-making through the council.
"What is amazing is that one hears no debate about this. In a sense it is a non-issue and one could be forgiven for believing that our political parties and leadership do not have any interest in the making and supervision of legislation coming from the Union."
Mr Rogers proposed legislation to provide for the election of a cadre of parliamentary representatives with the specific task of monitoring all proposals of the Commission, and to mandate and supervise ministers and officials in negotiations.
One way of doing this would be to elect by universal suffrage between four and six members of each of the constitutionally designated panels of the Seanad.
The Forum on the Future of Europe should come forward with proposals which would restore a role for the Dβil and Seanad in the European legislative process. This should not only involve the mandating of ministers, but also the participation of our national parliament in the institutions of the Union.