Influencing EU law depends on input in drafting process

Recent EU treaty changes have had much less significance for Ireland than the "regular and automatic" changes brought about by new laws from Brussels and decisions from European courts, a former attorney general has said.

Senior counsel Paul Gallagher, writing in a new book in tribute to the late attorney general Rory Brady, argues that the seriousness and extent of the challenges posed by EU law are not widely understood by the public, politicians or lawyers.

He also claims that “we in Ireland do not appear to have any real understanding of the potential reach” of the EU Charter of Fundamental Rights, which came into force with the Lisbon treaty.

While stressing the “enormous benefit” of EU membership for Ireland, Mr Gallagher writes that the exponential growth in EU laws, which run to 666,879 pages, requires changes in how lawyers are trained and in how the State secures influence in European institutions.

This includes ensuring that “the best and brightest people” from Ireland are placed in key European bodies.

Drafting input

While referendums on treaty change generate “periodic excitement and concern” here, Mr Gallagher said in reality it was ongoing EU legislative measures and court decisions that had the deepest significance. While the focus in Ireland was often on whether particular measures required unanimity or a qualified majority, the key to influencing those laws was rather on securing Irish input in the drafting process at an early stage.

Mr Gallagher's observations are contained in Law and Government, a new book written in tribute to the former attorney general Rory Brady, who died in 2010 at the age of 52.

Activism danger

In the same volume, senior counsel and former attorney general Michael McDowell warns of the dangers of judicial activism, challenging the expectation that the courts should be asked to fill a perceived void in public policy.

Mr McDowell argues against judicially enforceable social and economic rights, He writes that vesting judges with the power to supervise how the State spends taxpayers’ money would greatly increase the political implications of judicial appointments “and the motivation for politicians ... to appoint judges whose social and economic outlooks and beliefs corresponded closely to those of the political class in power for the time being”.

Born in the Liberties in Dublin, Rory Brady was called to the Bar in the late 1970s and was a well-known senior counsel by 1996. He advised Fianna Fáil and its then leader, Bertie Ahern, between 1997 and 2002 in relation to two tribunals of inquiry. He was appointed attorney general to a Fianna Fáil-led government in 2002.