Michael McDowell's robust challenge on Monday night to the visionary Euro-blather raised important questions about the European project but begged an even larger one. And the significance of the question his speech begged might well be to move us towards a European federalism which he warned against.
The main point of his speech had to do with the absence of democracy at the heart of the European Union, not in relation to the Commission which most critics mistakenly go on about, but in relation to the powerhouse of the Union, the Council of Ministers. He challenged the constitutionality of Irish ministers having a free hand to participate in the passage of legally binding European legislation at the Council of Ministers.
He said it is for the Irish people and legislature to decide the policy terms on which Irish ministers will vote or act at EU Council meetings. He found it remarkable that there was no obligation on ministers participating in the Council of Ministers to seek prior approval from the Oireachtas for how they would vote, since, under the Irish Constitution, it is not part of a minister's function to make laws.
This is all very clever and novel and it is refreshingly unusual for an Attorney General to challenge the constitutional propriety of the actions of ministers of the government he advises. And certainly it would be better from a democratic perspective if there was some control over how ministers voted on legislation passed by the Council of Ministers.
But there are a few problems. The first is that we simply don't know how ministers vote at the council because, invariably, the meetings are held in secret. (While, optically, the European Parliament is the parliament of the EU, the real parliament is the Council of Ministers, which still has the most decisive say in legislation.)
But even if we did know how our ministers voted in the Council of Ministers, we would not be party to the backroom deals that bring about council decisions. But even at that there is still a major problem. It is the council as a whole that takes decisions and it, as a whole, is accountable to nobody and could be accountable to nobody. That is except where a veto operates and then a minister who fails to exercise a veto can be held responsible to their own national parliament. A problem with the Nice Treaty was that it curtailed the areas where a veto prevails, albeit for good reasons, and therefore diminished the small area in which democratic accountability can operate.
There is only one way out of this short of going into reverse with the whole European project in a way that would destroy it. That is to do what Michael McDowell warned against: further European integration. Do away with the inter-governmentalism of the EU, which circumvents accountability, and instead concentrate power in democratically elected institutions, such as the European parliament and, possibly, an Upper House such as a Senate (as in the United States model) that was also democratically elected and accountable.
The argument against this and in favour of the present system is that Ireland has more clout on the Council of Ministers than it would have in any democratically elected and accountable body, be it the European Parliament or an Upper House. But what is the point of the likes of Brian Cowen or Gerry Collins or David Andrews or Dick Spring having clout if we have no means of holding them accountable and if the body on which they serve is itself not democratically accountable?
Michael McDowell argues against a deeper European Federation on the grounds that there is no public support for it, reflecting the argument of Anthony Coughlan of the National Platform that there is no European demos, no sense among the people of Europe that they are part of one entity, politically and culturally.
The argument is that in the absence of a shared identity, democratic institutions could not take secure root. This begs several questions. Is not the point of participation in politics to change people's attitudes, to win people to one's point of view? (Michael McDowell has always used as a trump card, as he sees it, that the people are not in favour of something so there was no point trying to change their minds). Even if there is no demos, would not new democratic institutions help to create one? And even if there is not to be a demos would the democratically accountable arrangement not be better than the present one?
There are real issues to be debated on the future for Europe and the No vote now affords us an opportunity to debate these matters ourselves and to have a real influence on how the European Union is to be configured. But if Bertie Ahern connives with the Euro zealots in trying to browbeat the Irish people into reversing their decision on the Nice Treaty, that will not happen and either we will succumb to the browbeating or the Treaty will be rejected again, in which case there will be a real crisis.
There is an obvious ploy for the Government to win a Yes vote the next time and it is to hold the referendum on the same day as the general election. This would ensure a high turnout and that, probably, would yield a Yes vote. But that tactic might also yield a high Sinn Fein vote, possibly a high Green Party vote, and the Government won't like that prospect.
vbrowne@irish-times.ie