UPDATE: Reply to Dr Gavin Barrett’s article on the Fiscal Treaty referendum in Friday 4/May Irish Times
“A Federation for the Eurozone and a Confederation for the rest of the EU”
(Note: The following replaces & corrects earlier version of 7/May)
TWO TREATIES FOR THE EUROZONE AND AN AMENDMENT TO ONE OF THE EU TREATIES – ALL RELATED TO EACH OTHER!Reply to Dr Gavin Barrett, Senior Lecturer in European Law, UCD, who wrote an article urging a Yes vote in the Fiscal Treaty referendum in the Irish Times on Friday 4 May, by Anthony Coughlan, Director, The National Platform EU Research and Information Centre, 24 Crawford Avenue, Dublin 9; Tel.: 01-8305792
Wednesday 9 May 2012
AMENDMENT TO ARTICLE 136, TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU) -
“The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
- Proposed amendment to Article 136 TFEU of the EU Treaties by which the 27 EU Member States authorize the 17 Member States of the Eurozone to establish a Stability Mechanism
The above Art.136 TFEU amendment to the EU Treaties has still to be approved by Ireland in accordance with its constitutional requirements under the “simplified” EU treaty amendment procedure of Article 48.6 TEU.
The European Council “Decision” to insert this amendment into the EU Treaties comes into force on 1 January 2013 if by that time it has been approved by all 27 EU Member States in accordance with their constitutional requirements.
The ESM Institution which the 17 Eurozone States seek to establish and which Ireland would become a Member of is to be set up by the ESM Treaty for the 17 on the basis of this Art.136 TFEU authorization by the 27. The ESM Treaty states that it is “complementary” to the Fiscal Treaty on which we have a referendum vote on 31 May.
The Government has promised the other 16 Eurozone Governments that it will have the ESM Treaty ratified by July, but without the necessary constitutional referendum being held on it and on the Art. 136 TFEU amendment which authorizes it.
Q. BUT WHERE WILL WE GET THE MONEY?
A. We will get the money by holding a referendum on the Article 136 TFEU amendment and the ESM Treaty that it authorizes. This is constitutionally required in Ireland in order to validate these proposals as they stand, but our supine Government wants to avoid such a referendum at all costs. The 16 other Eurozone States will have to persuade us to vote Yes in such a referendum if they are to establish the kind of Stability Mechanism which the ESM Treaty envisages. They can do this by agreeing to forgive the private bank debt the ECB has insisted should be imposed on Irish taxpayers, plus the Anglo-Irish promissory notes etc. An Irish referendum on Article 136 TFEU and the ESM Treaty would also be an opportunity to add the voice of the Irish people to the calls across Europe for the Eurozone authorities to agree a growth strategy instead of the present failed austerity policies.
Q. WHERE WILL WE GET THE MONEY IF WE VOTE NO TO THE FISCAL TREATY?
A. Where will the Government get the money to pay the €11 billion the ESM Treaty will require from us - €1.3 billion up front and €250 million of that this July! - with an open-ended treaty commitment to pay further sums thereafter without limit?
Filed under: Anthony Coughlan, austerity treaty, ESM, Fiscal Compact Treaty, Irish Economy, Myths & Misrepresentations, Referendum | Clibeanna: Article 136 TFEU, Dr Gavin Barrett, Fiscal/Stability Treaty, irish times, promissory notes, veto | 2 Comments »
From: Anthony Coughlan, Trinity College
The National Platform EU Research and Information Centre
24 Crawford Avenue
Professor Colm McCarthy
Department of Economics
Sunday 29 April 2012
I am writing to you to make some points arising from your comments on the so-called Fiscal Treaty and the referendum on it on RTE’s Morning Ireland last Tuesday morning.
You made a small error, if I may say so, when you said on the radio on Tuesday that the Fiscal Treaty can come into force when 12 of its 25 signatory States have ratified it. In fact it requires ratification by 12 of the 17 Eurozone States for it to come into force. Ratification by the eight signatory non-Eurozone States does not count for that purpose (See Art. 14 of the Treaty on Stability, Coordination and Governance in the EMU).
Minister Leo Varadkar, who should have known better, made the same mistake on Vincent Browne ‘s TV3 programme last Wednesday, and Prime Time made it similarly last Thursday.
I do not know if you are aware that this issue of the Fiscal Treaty and, more importantly, the ESM Treaty being able to be ratified without unanimity amongst all 17 Eurozone countries is arguably in breach of EU law and the existing EU Treaties. This issue of a unanimity requirement for these two Eurozone Treaties is at the heart of current constitutional challenges to the ESM Treaty in Germany, Estonia and – as announced in the Dail last week – here in Ireland.
This ESM Treaty requires us to stump up €11 billion in different forms of callable capital to the proposed ESM loan fund, €1.6 billion up front “irrevocably and unconditionally” – a figure that may be raised thereafter without limi(Art. 8 ESM Treaty) . And there is much more in the ESM Treaty that should make people worried. I wonder have you thought through the implications of this?
Both the Fiscal Treaty and the ESM Treaty are not EU treaties, as you know, but formally speaking are ”intergovernmental” treaties for the 17 Eurozone countries. They can only come into being however – because they affect monetary policy in the Monetary Union, that being an “exclusive competence” of the EU – on the basis of an authorization or license which requires an amendment to the EU Treaties. All 27 EU States, including Ireland, must agree to that authorizing amendment, and that authorisation has not yet been constitutionally approved here.
This authorization is given in a two-sentence amendment to Article 136 of one of the two primary EU Treaties, the Treaty on the Functioning, of the European Union, which reads: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under this mechanism will be made subject to strict conditionality.”
You will note that the authorization says “THE Member States , not “Member States” or “SOME” Member States , but rather all of them. Yet the Fiscal Treaty as it stands provides that it can come into force when 12 Eurozone States have ratified it, and the ESM Treaty provides that it comes into force and the Stability Mechanism which it proposes may be established once States contributing 90% of the capital to the ESM fund have ratified that.
A simple calculation based on the contributions set out in the Annex to the ESM Treaty shows that the eight largest Eurozone countries would contribute 90% of this capital so that, as the ESM Treaty stands, a minority of the 17 Eurozone States could bring the ESM into being. How then can the Stability Mechanism which it purports to establish be “for the euro area as a whole”, as required by the Art.136 amendment which authorises it?
More fundamentally, how can the ESM Treaty for the 17 Eurozone States be enabled to put the EMU which Ireland acceded to under Maastricht and Lisbon on an entirely new economic and legal basis when monetary policy for the euro area is an “exclusive EU competence” – and not a matter just for the Eurozone countries . . . and when the rules for EMU, including the Art.125 ban on Government bailouts and the 3% and 60% of GDP excessive deficit rules plus their enforcement mechanisms, are clearly set out in the existing EU Treaties and override all other laws and treaties for Member States of the Union?
If those original rules of the EMU had been enforced, the Eurozone countries would not now be in the mess they are in. Ireland complied with the excessive deficit rules of the EMU in the early 2000s, but when Germany and France broke them in 2003 and 2004 they were set aside, as you know, and the enforcement provisions in the Treaties – including heavy fines – were not applied. If they had been there would have been no need of bailouts and the Article 125 ban on bailouts would make perfect sense, for it would never have come into contention.
Now Germany, France and others want to get round the existing EU Treaty rules, and especially the Article 125 ban on bailouts, by means of the ESM Treaty for the Eurozone. The “Stability Mechanism” which this treaty envisages – and one can imagine all sorts of other Stability Mechanisms that would conform to EU law – is essentially a Bank or fund which would lend directly to Eurozone Governments that might be in trouble as the European Central Bank is forbidden from doing this by Article 125 TFEU.
But the EU is supposed to be a creature of law, and the Irish Constitution is obliged to uphold EU law. If the Eurozone States, having got themselves into their current mess, want to set up a structure for the EMU based on quite different rules which would effectively permit direct bailouts for Governments and the setting aside of the “no-bailout” article in the Treaties, they have to amend the EU Treaties with the agreement of all 27 Member States, and not just by means of a special treaty amendment for the 17 which flouts the express terms of the Article 136 TFEU authorization on which the ESM Treaty depends. To attempt to do that latter would effectively be to run a legal coach-and-horses through EU law and the existing EU Treaties in the Franco-German political interest.
You spoke on the radio yesterday and unfortunately gave the impression to those listening as if the ESM were a pot of gold which we would be excluded from getting access to if we were so foolish as to vote No to the Fiscal Treaty. Your comments were repeated on the evening TV news and I have no doubt they will be quoted repeatedly by Yes-side propagandists during the Fiscal Treaty referendum campaign if the Government does not have the good sense to put this referendum off until we can hold it alongside a referendum on the ESM Treaty and the Art.136 amendment to the EU Treaties which authorizes the ESM Treaty.
Such a referendum will almost certainly have to be held anyway, whether as a result of the Attorney-General’s advice in due course or as a result of the constitutional challenge to the ESM Treaty which Donegal Independent TD Thomas Pringle is taking in order to defend the Irish Constitution and EU law which it upholds and which should come up in the High Court during May when the Government has responded to his Statement of Claim, which I understand has been sent to the Solicitor-General.
I ask you would it not be foolish of Irish voters to change their Constitution so as to impose a maximum public deficit rule of 0.5% and a permanent balanced budget rule on Irish Governments for the indefinite future in order to obtain access to a proposed Eurozone loan fund, when this fund does not yet exist, when the ESM Treaty which would establish it has not yet been ratified and may well never be ratified, and when the ratification of that treaty will almost certainly require a separate referendum to be held on it in Ireland anyway?
That is why I would like to suggest to you that if one takes account of the Fiscal Treaty’s “complementary” treaty, the ESM Treaty – which, incidentally, the Government has promised the other Eurozone States it will have ratified by July! – the most rational course for people to take in relation to the Fiscal Treaty is really to vote No to it and to call for a referendum on the ESM Treaty and its Art.136 authorising amendment to be taken together with a possible second referendum on the Fiscal Treaty, when the full implications of the whole interconnected caboodle have been properly considered by the Irish public and media.
In my opinion, if the Government looked at the matter rationally it would welcome such a development as being in the country’s best interests. For if people vote No to the Fiscal Treaty referendum on 31 May that referendum can easily be run again – as long as it is done alongside a referendum on the ESM Treaty and the Art. 136 amendment to the primary EU Treaties authorizing that – for Ireland has a veto on the latter.
My reason for suggesting this is that if a referendum were required in this State on the ESM Treaty and its authorizing Art.136 amendment, the Eurozone could not establish the permanent ESM loan fund which they want to set up unless they have Ireland’s agreement. We need to use that veto, not ignore it.
This is how Ireland could get access to real money, real relief on our public debts and a fundamental transformation in the State’s financial position. The alternative is to look for relief to Taoiseach Enda Kenny’s wholly mythical pot of ESM gold, which does not yet exist and may well never do so in its present mooted form because of the illegality under EU law of its mode of establishment and its unconstitutionality under the Irish Constitution. A No vote on 31 May opens for us a way to real money; a Yes vote makes us look like fools.
The course of action outlined here would put Ireland in a powerful bargaining position – as nothing else can do – to get massive write-downs on our State debt, a cancellation of those draconic promissory notes and all the rest. It could even put us in a position to give a lead across Europe in urging an expansive, growth-oriented policy on the Eurozone instead of the current austerity that is clearly not working.
This would of course require the Government to show some gumption vis-a-vis the Eurozone authorities instead of bowing to them spinelessly out of misplaced and outdated Europhilia. If Ministers fear offending Germany and France by deciding independently to hold a referendum on the ESM Treaty and Art.136 TFEU, they should be praying instead that Thomas Pringle TD’s constitutional challenge will succeed.
Forgive me for going on at such length. But if there is a real possibility of such a position being attained by holding these referendums on the ESM Treaty, would it not be utter folly for us not to take it? Germany, France and the rest would have no alternative but to oblige us if they wanted Irish voters to say Yes in such an ESM Treaty referendum, for their €700 billion loan fund would depend on it.
That is why in my opinion genuine Eurofederalists who oppose the Franco-German takeover-bid for the EMU which is currently occurring through these two Eurozone Treaties, as well as longstanding Eurocritics like myself and my colleagues who are opposed to further surrender of what is left of Irish sovereignty, have an objective interest in uniting to defend the integrity of the EU Treaties as they stand against this Franco-German scheme to make the Eurozone their captive.
For what Germany and France are planning in their takeover-bid for the Eurozone and their proposals to change radically the EMU which Irish voters voted for under Maastricht and Lisbon, would radically alter the EU for the worse and push it in a profoundly undemocratic and anti-social direction.
Europhiles as well as Eurocritics could thus validly be urged to vote No to the Fiscal Treaty in order to hold the EU together!
Maybe you would consider these points and whether you think they have any merit. If you cared to meet to have a chat about these treaties and related matters for lunch or over a drink any day, I should be glad to meet you at any time or place that suited you.
With best regards
Associate Professor Emeritus in Social Policy, Trinity College Dublin
PS. Because of the public interest character of this matter, I hope you do not mind too much if I circulate copies of this as an “Open Letter” to the media for their information.First published online @ http://www.indymedia.ie/article/101780
The relation between two different treaties we are asked to ratify, which people Need to understand
The Government’s announcement of a referendum on the so-called “Fiscal Compact Treaty” (properly titled the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union/TSCG) calls in question its original intention to introduce the quite different European Stability Mechanism Treaty (ESM) to the Dáil for approval of its ratification on Tuesday or Wednesday next, or else sometime in the present pre-Easter Dáil term, as the Taoiseach recently announced.
The ESM Treaty would set up a permanent Eurozone bailout fund of at least €500 billion form this July – an economic firewall against sovereign debt “contagion” spreading to Spain and Italy. It has to be ratified by all 17 Eurozone States by their appropriate constitutional procedures. The ESM Treaty would commit Ireland to contributing €11 billion to the permanent Eurozone fund – so much money up front and so much in guarantees called “callable” capital later if required. There is already talk of boosting this fund by another few hundred billion once it is established, to which Ireland would naturally have to make a contribution also.
The Preamble to the ESM Treaty, which can be easily downloaded from the Internet, states (Recital 5): “It is acknowledged and agreed that the granting of fonancial assistance in the framework of the new programmes under the ESM will be conditional, as of March 2013, on the ratification of the TSCG [that is, the "Fiscal Treaty"] by the ESM Member concerned…”
This means that if the ESM Treaty, is ratified by Ireland sometime this month – we will be committing ourselves to contributing €11 billion to a fund from which we can receive no benefit or advantage whatever if voters should vote No to the Fiscal Treaty referendum that will presumably be held sometime in May or early June, although the Fiscal Treaty need not be ratified until the end of this year. The ESM Treaty was signed on2 February, the Fiscal Treaty/TSCG was signed on Friday last.
Would the Government not be acting in a very foolish fashion to lay the country open to such a possibility?
Would not the Irish State appear to be acting really bizarrely in the eyes of international public opinion if the ratification of these two quite different treaties was put the wrong way round in this way – very much against the Irish People’s interests?
Or has the Government in mind to introduce and ratify the ESM Treaty during March, as the Taoiseach said,
- thereby binding the State to contribute €11 billion plus to this permanent Eurozone Fund,
- and then use that as a moral bludgeon with which to browbeat a bamboozled electorate into voting Yes to the “Fiscal Treaty” – on the ground that if they should vote No to it, they will be depriving themselves of possible access to the permanent Eurozone fund at some time in the future?
Could our leaders really be so cynical?
Surely it becomes imperative in these circumstances that the Government should postpone ratification of the ESM Treaty until after the referendum on the Fiscal Treaty has been held?
The 17 Eurozone Prime Ministers and Presidents have agreed that they would try to bring the ESM Treaty into force by July. The original intention with this treaty’s predecessor, ESM Treaty No.1, which Michael Noonan and the other Eurozone Finance Ministers signed last year, in July 2011, had been to bring the permanent ESM fund into being in 2013, although ESM Treaty No.1 was never sent around for ratification. The date of next July would still give Ireland plenty of time in which to hold its “Fiscal Treaty” referendum in May or early June and thereafter ratify the ESM Treaty (No.2) to come into force by July if the people should vote for it.
Anthony Coughlan (Director)
Filed under: Anthony Coughlan, EU Economy, Euro / Monetary Union, Fiscal Compact Treaty, Fiscal Union, Irish Economy, Referendum | Clibeanna: Coordination and Governance in the Economic and Monetary Union, ESM, European Stability Mechanism, fiscal compact, Fiscal Compact Treaty, fiscal treaty referendum, irish referendum, Treaty on Stability, TSCG | Leave a comment »
Below for your information is a copy of the letter that was delivered to Mr Justice Frank Clarke, Chairman of the Referendum Commission, from Anthony Coughlan last Thursday, with the most relevant passages highlighted in bold …
Sunday 27 September 2009
MrJustice Frank Clarke
The Referendum Commission
18 Lower Leeson St.
The National Platform EU Research and Information Centre
24 Crawford Avenue
Thursday 24 September 2009
Dear Mr Justice Clarke
May I enclose for your information a copy of the new edition of the Lisbon Treaty: The Readable Version, the first edition of which I sent you and your Referendum Commission colleagues some time ago. I also enclose a document which describes the main changes the Lisbon Treaty would make.
May I take the opportunity of saying that the current Lisbon referendum, as I presume you have noted, has been characterized by monstrous illegality on the part of several key parties, as follows:-
1. The intervention of the European Commission, which is unlawful under European law, as the Commission has no function in relation to the ratification of new Treaties, something that is exclusively a matter for the Member States under their own constitutional procedures;
2. The part-funding of the posters and press advertisements of most of Ireland’s Yes-side political parties by their sister parties in the European Parliament, even though it is illegal under Irish law to receive donations from sources outside the country in a referendum and when, under EU law, money provided by the European Parliament to cross-national political parties is supposed to be confined to informational-type material and to avoid direct partisan advocacy. I read that the Green Party has refused such funding from its sister party in the European Parliament on the ground that it is advised that this is illegal under European law (Later comment on this latter point inserted by A.Coughlan:
Presumably this scrupulousness is because Green Party Local Government Minister
John Gormley, as Minister responsible for running the referendum, cannot afford to
have the political party he belongs to flout the law!)
3. The Government’s unlawful use of public funds in circulating to voters a postcard with details of the so-called “assurances” from the European Council, followed by a brochure some time later containing a tendentious summary of the provisions of the Lisbon Treaty – both steps being in breach of the Supreme Court’s 1995 judgement in McKenna that it is unconstitutional of the Government to use public money to seek to procure a particular result in a referendum;
4. The failure of your own Referendum Commission to carry out its statutory function under the 1998 and 2001 Referendum Acts of preparing for citizens a statement or statements “containing a general explanation of the subject matter of the proposal (viz. the proposal to amend the Constitution) and of the text thereof in the relevant Bill”, namely the 28th Amendment of the Constitution Bill 2009.
May I make some points to you and your Referendum Commission colleagues regarding this.
The Lisbon Treaty-Your Guide which you have circulated to voters makes no attempt to inform them about the proposed Constitutional Amendment, despite that being your prime statutory duty and that of your Referendum Commission colleagues under the Referendum Acts.
The leaflet and other material which you have made available do not tell citizen-voters that the new first sentence of the proposed Amendment we shall be voting on provides that the State
“affirms its commitment to the European Union” which would be established by the Lisbon Treaty – a sentence, incidentally, that was not in the Constitutional Amendment in last year’s referendum – and you give voters no idea that this is the case or what such a commitment might entail.
You do not inform voters that the second and third sentences of the proposed Amendment make clear that ratifying the Lisbon Treaty would abolish the European Community which Ireland joined in 1973 and would establish in its place a new European Union on the basis of the Lisbon Treaty which would be constitutionally very different from the European Union that we are currently members of, or what that difference might be.
Nowhere in the Referendum Commission’s information material that you have sent to voters do you advert to the fact that the Lisbon Treaty would confer on Irish citizens an “additional” citizenship of the post-Lisbon European Union, with associated citizens’ rights and duties vis-à-vis that Union, and what the implications of such a change might be.
One would think that there could be be few things more constitutionally important for citizens than being endowed with an additional citizenship. Yet you and your Commission say absolutely nothing about it in the “information” material you have circulated – in violation of the provisions of the Act which gives you your authority.
You say nothing about how the rights and duties that we would have as real citizens of the constitutionally new European Union which the Lisbon Treaty would establish would relate to our rights and duties as Irish citizens in the event of any conflicts arising between the two; or how the “additional” citizenship that Lisbon would endow us with differs from our essentially notional and symbolical EU “citizenship” of today.
It is clear that such a dereliction of duty on your part and that of your fellow Commissioners amounts to constitutional delinquency of a high order, as well as being a gross misuse of the ¤4 million of public money that you have been entrusted with. It will be interesting to see how future historians assess your actions.
As for yourself personally, instead of doing the job which the Referendum Acts impose on you, you have arrogated to yourself the task of answering questions on the Lisbon Treaty on the radio and in the press, in which you give your personal opinions and judgements, whereas all statements by the Commission should be collectively agreed by its members, as the Referendum Acts clearly envisage.
In no way do the Referendum Acts authorise you to do the “solo runs” on radio and in the press that you have undertaken. Your predecessor, retired Chief Justice TA Finlay, who was an exemplary chairman of the Referendum Commission between 1998 and 2002, would never have permitted this.
Some of the oral statements you have made, moreover, have been either false or misleading. From several l examples I could give, I quote two. A fortnight ago you accepted in response to a question on Morning Ireland that the right of Member State governments to “propose” and decide their National Commissioner would be changed by the Lisbon Treaty into a right to make “suggestions” only, effectively for the incoming Commission President to decide - that key person’s appointment being in the gift of the Big States.
You added the rider however that you did not think this change was of much consequence. You must be aware from previous private correspondence that I had with the Referendum Commission on behalf of my colleagues in our EU Research and Information Centre that many people on the No-side consider this be a Lisbon Treaty amendment of considerable consequence. One way or another, its consequences are clearly a matter of political judgement which it is not your job as Referendum Commission chairman to make.
Last Friday I heard you state on Morning Ireland that the difference between the “additional” citizenship that we would have of the post-Lisbon European Union and the notional or symbolical “complementary” EU citizenship we are said to have today was “of no great consequence” either, or words to that effect. Yet the most cursory acquaintance with the constitutional changes which the Lisbon Treaty and the Constitutional Amendment to ratify it would bring about, shows that this is just not true. Lisbon is the old Treaty Establishing a Constitution for Europe after all which the French and Dutch rejected in 2005, even if it implements that Constitution for Europe indirectly rather than directly.
You and your Referendum Commission colleagues still have some time left in which to fulfil your statutory function under the Referendum Acts that set you up. You still have a few days in which to do your duty to the Irish people whom you are profoundly failing at present, as they face their historic decision of next Friday with virtually nothing from you and your Referendum Commission colleagues which might give them “the general explanation of the subject matter” of the Constitutional Amendment “and of its text”, on which they will be voting, as the Referendum Act requires.
On behalf of citizens all over the country who are deeply disquieted by the Referendum Commission’s failure to provide information on how the Lisbon Treaty would affect the Consitution, may I appeal to you to do that duty still and to carry out your statutory function under the Referendum Acts.
President, Foundation for EU Democracy, Brussels
PS. I intend to release this letter to the media this weekend and to circulate it widely to Irish opinion-leaders.
Preliminary submission to the Oireachtas Sub-Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre:
Why Lisbon is a bad Treaty for both Ireland and the EU
Ireland should remain a fully committed member of the present European Union and European Community that were established by the 1992 Maastricht Treaty on European Union. It should not support the abolition of the present European Community and Union and their supersession by the proposed new European Union whose Constitution is set out in the 2004 Treaty Establishing a Constitution for Europe and the 2007 Treaty of Lisbon, and of which we would all be made real citizens for the first time.
The latter would be a radically undemocratic EU whose proposed Constitution has already been rejected by the voters of France, the Netherlands and Ireland in referendums.
The challenge facing Ireland is how it can induce the Governments of the other EU countries to respect the referendum votes of the peoples of France, Holland and Ireland itself when they rejected this proposed new and highly undemocratic European Union.
The best way of doing this is for the Irish Government to respect the vote of its own citizens last June, inform the other EU Governments that Ireland cannot ratify the Lisbon Treaty as it stands, and that it intends to await the almost certain arrival to office of a Conservative Government in the UK inside the next 18 months. According to Shadow Foreign Secretary William Hague, writing in the Irish Times on 26 July 2008, Britain’s incoming Conservative Government will be committed to putting Britain’s ratification of the Lisbon Treaty “on ice” and will hold a referendum on it in the UK and recommend a No vote to it if that Treaty has not come into force by the time it comes to office. This will also give our fellow-countrymen in Northern Ireland an opportunity to vote on this important Treaty.
By taking such a stand the Irish Government will be upholding democracy in the EU and preventing it being deeply damaged by the political leaders of the big Member States, in particular France’s President Sarkozy and Germany’s Chancellor Merkel, whose power and voting weight in EU law-making would be markedly increased by the provisions of the Lisbon Treaty. Ireland would thereby be upholding the best ideals of the European project.
The principal reasons why the Lisbon Treaty is not in the interests of either the Irish people, of the peoples of the other Member States, or of the EU itself are as follows:-
1. Lisbon would abolish the European Community which we have been members of since 1973 (Art.1 TEU / Treaty on European Union) and would replace the existing EU with a legally new Union in the constitutional form of a supranational EU Federation with its own legal personality distinct from its Member States. Instead of being sovereign States in the international community, Lisbon would thus reduce Ireland and the other Member States to the constitutional status of provincial states in a Federation, like Virginia inside the Federal USA or Bavaria inside Federal Germany. The laws of this new European Union would thereafter have primacy over national Constitutions and laws (Arts.1 and 47 TEU; Declaration No.17 concerning Primacy).
2. It would make the 500 million people of the EU into real citizens of this new EU Federation, owing their prime obedience to its laws and loyalty to its authority over and above their citizens’ duty to their national Constitution and laws in any case of conflict between the two. One can only be a citizen of a State and all States must have citizens. Instead of EU citizenship being “complementary” to national citizenship and essentially notional and symbolical (Art.17 TEC / Treaty Establishing the European Community). Lisbon would make EU citizenship “additional to” national citizenship (Art.9 TEU). This would give us all a real dual citizenship, not of two different States but of the Federal and provincial levels of one State, as in the US or German federations. One example of this change: if Lisbon came into force MEPs, who at present are “representatives of the peoples of the States brought together in the Community” (Art.189 TEC), would become “representatives of the Union’s citizens“, just as in any State (Art.14.2 TEU). Ireland’s statutory Referendum Commission failed to make any mention of these facts in the material it sent to citizens for the June 2008 referendum,despite being given €5 million to explain the constitutional amendment to voters.
3. It would be a power-grab by the Big States, with EU law-making in the Council of Ministers based henceforth primarily on population size as in any unified State, thus greatly increasing the power of the Big EU Members with large populations and reducing the voting weight of Ireland and the other smaller states. Germany’s voting weight in making EU laws would go from 8% to 17% as a result, while Ireland’s would halve to 0.8% (Art.16 TEU).
4. It would remove the right of Ireland and the other EU Member States to decide who their national Commissioner would be in the ten years out of every 15 when Member States would have a Commissioner under Lisbon. It would do this by replacing each Member State’s present right to “propose” a Commissioner – and to insist if need be on its proposal being accepted as a condition for it accepting the proposals of others (Art.214 TEC) – by the right to make “suggestions” only, and leave it for the incoming Commission President to decide (Art.17.7 TEU). Who the Commission President is would be decided mainly by the votes of the Big States. Again the Referendum Commission glossed over this significant Lisbon amendment in its information material to Irish voters by using the same word – “nominate” - for the pre-Lisbon and post-Lisbon situations as if there was no difference!
5. It would give the EU Court the power to decide our fundamental rights as EU citizens, rights which the EU and its Member States would then have to enforce over and above our rights as Irish citizens in any case of conflict between the two (Art.6 TEU and the EU Charter of Fundamental Rights).
6. It would weaken National Parliaments further by abolishing 68 national vetoes and would give the EU power to make European laws binding on the nationals of the Member States in some 30 new policy areas, such as crime, justice and policing, public services, immigration, energy, transport, tourism, sport, culture, public health and the EU budget.
7. It would give the EU the power to raise its own taxes and impose any tax, including income tax or sales tax, by consensus amongst the governments, without the need for further new treaties or referendums (Art.311 TFEU /Treaty on the Functioning of the EU).
8. It would empower the EU Court of Justice to order the harmonization of indirect taxes amongst the EU countries if the Court should decide that failure to do this constituted a “distortion of competition” (Art.113 TFEU).
9. It would militarize the EU further, requiring Member States “progressively to improve their military capablities” (Art.42.3 TEU ), and it contains what Commission President Barroso termed “a mutual defence clause”, requiring Member States to go to the assistance of other Member States in the event of war (Art.42.7 TEU).
10. It would subvert workers’ rights by copperfastening the recent Laval, Rüffert and Luxembourg judgements of the EU Court of Justice, which were delivered after Lisbon was signed and which subordinate employee wage bargaining to the EU’s internal market rules. These judgements can be reversed only by a special new Treaty Protocol.
11. It would be a self-amending Treaty which permits EU law-making to be shifted from unanimity to majority voting without the need of new Treaties or referendums (Art.48 TEU).
12. It would reintroduce the death penalty “in time of war or of imminent threat of war” for the European Army that it envisages by providing for the post-Lisbon EU acceding as a corporate entity, separate from its Member States, to Protocol 6 of the European Convention on Human Rights, which permits use of the death penalty on these occasions, instead of to Protocol 13, which bans the death penalty in all circumstances and to which most EU Member States have acceded (Explanation attached to Art.2 of the EU Charter of Fundamental Rights). This item is in a footnote of a footnote in the Lisbon Treaty and has caused much controversy in Germany and Austria, although most people in Ireland have never heard of it. Again the Referendum Commission made no mention of this proposal in its information material to Irish voters for the 2008 Lisbon referendum, although the matter was drawn to the Commission’s attention.
13. It would make National Parliaments formally subordinate to the post-Lisbon EU. Far from increasing the power of National Parliaments, as pro-Lisbon spokesmen untruthfully assert, Lisbon underlines their implicitly subordinate role in the institutional structure of the post-Lisbon Union by providing that “National Parliaments contribute to the good functioning of the Union” by various means that are set out in Article 12 TEU. Under Lisbon National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third of National Parliaments object, the Commission can then decide to continue with its legislation unamended, with its decision confirmed by the normal Council of Ministers QMV procedures (Protocol on Subsidiarity and Proportionality, Art.7.2). In no sense can this be said to give “more control” to National Parliaments, as pro-Lisbon spokesmen continually assert in blatant contradiction of the truth.
14. It would create a political government of the new Union by turning the regular summit meetings of EU Prime Ministers and Presidents, known as the European Council, into a formal legal instititution of the Union for the first time (Art.13 TEU). This would mean that this body’s acts and failures to act would become subject to legal review by the EU Court of Justice (Arts 263-5 TFEU). This would also mean that individual Prime Ministers and Presidents would be constitutionally obliged henceforth to represent the Union to their Member States as well as their Member States to the Union, with the former function having legal priority in any case of conflict between the two functions. The Referendum Commission ignored this important change in its information material too.
A Note on how all EU Member States may continue be represented on the EU Commission under the Nice Treaty provisions
The Lisbon Treaty’s provision that Member States would lose their present right to decide who their national Commissioner would be (Art.17.7 TEU) makes the retention of one Commissioner per Member State instead of their reduction by one-third from 2014 (Art.17.5 TEU) of little value anyway, should this be agreed among the EU Governments as expected.
A political declaration by the EU Prime Ministers and Presidents that if the Lisbon Treaty should be ratified by all Member State including Ireland, the European Council will exercise its discretion in 2014 to maintain one Commissioner for every Member State might have some political but no legal value, for it would not be part of the Treaty. It could only be relied on until such time as no one was paying attention anymore post-Lisbon, when the European Council could use its discretion to cut the number of Commissioners or – perhaps more likely – introduce permanent senior and junior ones.
The Nice Treaty’s Protocol on EU Enlargement (Art.4.2) requires the number of EU Commissioners to be less than the number of Member States from 2009, although by an unspecified number to be agreed unanimously.
If the European Council is now prepared to accept that the number of Commissioners should continue to be equal or approximately equal to the number of Member States, the most practical way of doing this under the provisions of the Nice Treaty is for the Council to agree to reduce the number of Commissioners from 27 to 26, with the person who holds the position of High Representative for Foreign and Security Policy sitting in on Commission meetings in a non-voting capacity instead of having a Commissioner from that country. This would mean that the Commission would remain practically unchanged from the present, with all 27 Member States being represented on it, while the provisions of the Nice Treaty were simultaneously abided by.
Submission to the Oireachtas Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre
(N.B. The four numbered headings below correspond to the four points of the Committee’s terms of reference)
1. The challenges facing Ireland following the Lisbon Treaty referendum result:
By voting No to the Lisbon Treaty on 12 June 2008 the majority of Irish voters rejected the proposal that they should change the Irish Constitution to allow the abolition of the present European Union and European Community which were established by the the 1992 Treaty of Maastricht, as amended, and their replacement by a legally new European Union, separate from and superior to its Member States, which would be established by the Lisbon Treaty, whose laws, acts and measures would thereafter have the force of law in the State.
The Irish people thereby rejected the attempt to establish a European Union which would have the constitutional form of a supranational Federation, of which they would be made real citizens for the first time, just as the peoples of France and the Netherlands rejected a similar proposition when they voted No to the Treaty Establishing a Constitution for Europe in 2005.
Irish referendums are a form of direct legislation by the people
Irish referendums are a form of direct legislation in which the Irish people, who adopted their basic law or Constitution by direct referendum vote in 1937, decide to legislate or not to amend that Constitution in subsequent referendums thereafter. Last June’s referendum vote was a clear refusal by the people to assent to the constitutional revolution which had been presented to them for decision by the Government and Oireachtas in the 28th Amendment of the Constitution Bill, 2008.
Article 6 of the Constitution states that it is the right of the Irish people “in final appeal, to decide all questions of national policy.” The matter at issue in the Lisbon Treaty vote was not just a question of national policy; it proposed to alter the fundamentals of the Constitution itself, as the Constitition of a sovereign State, by turning the Republic of Ireland into a constituent element of a supranational European Federation, a political Union which went far beyond the primarily economic European Community and European Union that Ireland is at present a member of.
The Irish people decided to reject Lisbon by clear majority vote. All Yes-side voters who are democrats should respect that vote and abide by it. Any attempt to put the same Lisbon Treaty to the Irish people again with a view to reversing last June’s vote would almost certainly be in violation of Article 6 of the Constitution and would be open to consitutional challenge in the Courts.
“Respecting” the voters’ decision means abiding by it, not working to overturn it
Although the Government says that it respects the voters’ decision, which means that it should abide by it, all the signs are that Taoiseach Mr Brian Cowen and his colleagues, from the moment the trend of the ballot papers was evident at the referendum count, have set out to work with other EU Governments to overturn this democratic result in a second Lisbon referendum, just as occurred when voters rejected the Treaty of Nice in June 2001.
If Taoiseach Mr Brian Cowen and his colleagues had really respected the voters’ decision, they would have said to their EU colleagues that Ireland could not and would not ratify the Lisbon Treaty in view of the referendum vote. Further ratifications by other EU States would therefore have been pointless, as the Treaty can come into force only if all 27 signatory States ratify it, and there would have been no point in other Member States going ahead with ratifying the Treaty in the light of such a decision by Ireland.
This is what British Foreign Secretary David Milliband was referring to when he said on the day after the Irish vote that the future of the Lisbon Teaty was in the hands of Irish Taoiseach Brian Cowen.
At lunchtime on the day of the referendum count, while the ballots were still being sorted although their trend was clear, Foreign Minister Micheal Martin stated on RTE that “of course the ratifications by other countries will continue.” He would not have said this without the agreement of the Taoiseach. That same morning Commission President Barroso spoke privately with the Taoiseach on the phone, after which he said that ratifications by the other EU States would continue despite the Irish vote. This presumably reflected assurances which the Taoiseach gave him that the No vote last June did not mean that Ireland would not be ratifying Lisbon.
So while the Taoiseach, Foreign Minister Martin and other Government Ministers vehemently protest that they “respect” the people’s vote, they simultaneously refuse to accept the decision of the voters by telling their EU colleagues that Ireland would not therefore be ratifying the Lisbon Treaty. They have thereby encouraged the other EU States to continue with their ratifications on the assumption that the Irish Government and Oireachtas would induce Irish voters to reverse their 12 June vote and ratify the Treaty in a second referendum, as occurred previously with the Nice Treaty.
This is not “respect” by Government Ministers for the decision of the voters. It is rather total disrepect. It amounts in effect to the Irish Government aligning itself with the governments of other EU countries, and in particular those countries that are most committed to the Lisbon Treaty – Germany and France – and the Brussels Commission, against its own people in an attempt to bring about the constitutional revolution embodied in Lisbon, a revolution which would destroy their people’s national democracy and independence as citizens of a sovereign State.
A dilemma of the Government’s own making
If Taoiseach Brian Cowen and his colleagues find themselves next month to be the government of one of only a handful of EU Member States that have not ratified Lisbon, this will be entirely due to the unwillingness of the Taoiseach and his Government to respect the Irish people’s referendum vote on Lisbon. It will be due to their de facto efforts to reverse that result in concert with President Sarkozy, Chancellor Merkel, Commission President Barroso and others. This is truly a constitutionally awesome course for any Irish Government to take.
The suggestion that the other EU Member States are unwilling to open issues of concern in the Lisbon Treaty, or to “re-negotiate” its contents, is a spurious one, for the Treaty cannot come into force without Ireland ratifying it. If Ireland does not ratify, the Treaty falls. All the issues of the Treaty’s contents would still remain in play however, to be dealt with in the normal toing-and-froing of EU politics over the years or in further EU treaties at some future date.
The Lisbon Treaty and the EU Constitution which it embodies is a bad treaty for Ireland and for the EU, for the reasons publicly canvassed with voters in last June’s referendum and which were set our in our preliminary submission to the Oireachtas Sub-Committee of 22 October (see below).
By refusing to ratify the Lisbon Constitution Ireland is also upholding its rejection by the peoples of France and the Netherlands, founder members of the original EEC – for the content of Lisbon is 96% the same as the original constitutional treaty that they voted No to. By rejecting Lisbon and by standing by that rejection, Ireland is also upholding the existing European Union and European Community founded on the 1992 Maastricht Treaty as amended. It is refusing to allow the Prime Ministers and Presidents of the majority of EU countries to foist on the peoples of Europe a new and profoundly undemocratic European Union, in the constitutional form of a Federation, when opinion polls show that the peoples of most Member States do not want this and would reject it if they were given the opportunity of voting on it.
That this would be the case was admitted by French President Sarkozy when he stated at a meeting of group leaders in the European Parliament last year that “France was just ahead of all the other countries in voting No. It would happen in all Member States if they have a referendum. There is a cleavage between people and governments … A referendum now would bring Europe into danger. There will be no Treaty if we had a referendum in France, which would again be followed by a referendum in the UK.” (EUobserver, 14 November 2007)
The EU Prime Ministers and Presidents act against their own peoples
That is the reason why the Prime Ministers and Presidents of the EU Member States gave a commitment to one another when they signed the Lisbon Constitution to avoid referendums on it at all costs. It is why the French and Dutch Governments refused to hold referendums on Lisbon even though it was virtually identical with the constitutional treaty their peoples had voted No to in 2005. It is why British Prime Minister Gordon Brown abandoned his Labour Party’s commitment, and his predecessor’s promise, to hold a referendum on an EU constitution in the UK. It is why the Danish Government is avoiding a referendum in Denmark even though referendums on major EU treaties have traditionally been required there.
A radically altered EU built on such undemocratic foundations would be inherently unstable and unable to endure. That is why Ireland would be upholding the best ideals of the European project by resisting the pressures from the bigger EU States to re-run the Lisbon Treaty referendum with a view to reversing the majority decision of Irish voters last summer.
By resisting such pressures Ireland would simultaneously be upholding the wishes of the majority of Europe’s peoples for a more democratic, less centralised and more transparent EU, where decisions for some 500 million people would not be taken by tiny numbers of people, in the European Commission, Council of Ministers and Court of Justice, bodies that are irremoveable as collectivities and whose members are safeguarded from intervention by the voters.
Ireland would thereby be forcing a return to the principles of the 2001 Laeken Declaration which recognised the democratic deficiencies of the present EU, before the process of reform was hijacked by the Euro-federalists who drew up the EU Constitution in an attempt to foist on us a European Union that would be profoundly more undemocratic and less responsive to voters than the EU we have today.
What the Irish Government should now do on Lisbon
To meet the challenges facing Ireland in the EU following the Lisbon referendum therefore, the Irish Government should do the following:-
a) Abide by the voters’ decision of last June in reality rather than in pretence, and inform the other EU States that Ireland will not be ratifying the Lisbon Treaty in its own interests and those of the EU as a whole;
b) Point out forcefully to its fellow EU governments that the rejection of the EU Constitution and the Federalist EU that it embodies by the peoples of France, the Netherlands and Ireland – and its likely rejection in several other countries if their peoples were allowed a vote on it – shows that Lisbon is a bad treaty for the EU as a whole, and that the EU leaders should therefore begin a process of consultation with their citizens on the kind of Europe their peoples really want, and that they should go back to the principles of the Laeken Declaration as a guide to this;
c) Point out to its EU fellow governments that the British Conservative Party is committed to putting Britain’s ratification of Lisbon “on ice” in the event of that party being elected to office before that Treaty is ratified, holding a UK-wide referendum on it and recommending a No vote to it, and that it would therefore be prudent of the EU as a whole to await the outcome of the UK general election, which is due in little over a year, before trying to foist an unwanted Lisbon Constitution on the peoples of the UK. The Government should point out that such a referendum would also give our fellow-countrymen and women in Northern Ireland an opportunity to express their views on this hugely important treaty;
d) Recommend to its fellow EU governments that it would be prudent also to await the outcome of the Czech Constitutional Court and Senate proceedings, and the Grauweiler constitutional challenge to Lisbon before the German Constitutional Court, before doing anything further in this matter;
e) If, as seems to be the case, there is now general consensus among the EU Prime Ministers and Presidents that it is not politically practical, under either Nice or Lisbon, to take away from each Member State their right to have one of their nationals on the Commission, the Government should propose that the most effective way of achieving this while abiding by the provisions of the Nice Treaty, would be to have 26 instead of 27 Commissioners, with a place and voice on the Commission to be given to the High Representative for Foreign and Security Policy, instead of having a formal Commissioner from the country whose national holds this office.
2. Ireland’s future in the EU… Our influence within the European institutions
Ireland should remain a fully committed member of the present European Commmunity and European Union. At the same time the Government should advocate a genuine democratic reform programme for the EU, following debate and discussion with its own citizens and with other EU States, especially smaller ones, in the process of consulation suggested in Point (b) above.
Advance a programme of democratic reform of the EU
Such a process of genuine EU democratic reform could include, inter alia: (i) the election of Commissioners from each Member State, with the Commission’s legislative programme being presented beforehand to National Parliaments each year; (ii) changing the Council of Ministers voting system so that European laws could be adopted only if at least three-quarters of Member States covering at least half of the EU’s population were in favour; (iii) abandoning the idea of a special code of fundamental rights for EU citizens as distinct from national citizens and requiring the EU institutions to abide instead by the European Convention of Human Rights; (iv) reducing drastically the burden of EU laws and repatriating appropriate law-making areas from Brussels to the Member States as envisaged in the Laeken Declaration.
Ireland’s influence in the EU institutions would be drastically reduced by the provision of the Lisbon Treaty which would take away from EU Member States the right to “propose” and decide who its national Commissioner was, and replace that by the right to make “suggestions” only for the incoming Commission President to decide. Ireland’s influence would also be drastically reduced by the Treaty’s proposal to halve Ireland’s voting weight in EU law-making on the Council of Ministers from 2% to 0.8%, while Germany’s voting weight would simultaneously increase from 8% to 17%, France’s from 8% to 13% and Britain’s and Italy’s from 8% each to 12% each.
3. Enhancing the role of the Houses of the Oireachtas in EU affairs:
The flood of EC/EU legislation has these days become so great that two-thirds or more of all legal acts in EU Member States now emanate from Brussels. This means that national Parliamentary Scrutiny Committees can give an average of only a few minutes time, if that, to each European legal act. This means that most legal acts get little or no consideration or discussion at National Parliament level, not to mind amongst the general public. Important matters can go through without consideration or debate, whose adverse social consequences only show themselves later when damage may be done.
This is outrageous from the democratic point of view and gives rise to public hostility and cynicism regarding the whole process of European law-making. The only remedy would seem to be to institute fundamental democratic reforms in the EC/EU which would reduce the aforesaid flood of European laws. That in turn would require an EU Reform Treaty that is very different in character from the miscalled “Lisbon Reform Treaty”. The comments on this matter by Dr Roman Herzog, former President of Germany and former President of the German Constitutional Court, are relevant:
” It is true that we are experiencing an ever greater, inappropriate centralisation of powers away from the Member States and towards the EU. The German Ministry of Justice has compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004 with those adopted by the European Union in the same period. Results: 84 percent come from Brussels, with only 16 percent coming originally from Berlin … Against the fundamental principle of the separation of powers, the essential European legislative functions lie with the members of the executive … The figures stated by the German Ministry of Justice make it quite clear. By far the large majority of legislation valid in Germany is adopted by the German Government in the Council of Ministers, and not by the German Parliament … And so the question arises whether Germany can still be referred to unconditionally as a parliamentary democracy at all, because the separation of powers as a fundamental constituting principle of the constitutional order in Germany has been cancelled out for large sections of the legislation applying to this country … The proposed draft Constitution does not contain the possibility of restoring individual competencies to the national level as a centralisation brake. Instead, it counts on the same one-way street as before, heading towards ever greater centralisation … Most people have a fundamentally positive attitude to European integration. But at the same time, they have an ever increasing feeling that something is going wrong, that an untransparent, complex, intricate, mammoth institution has evolved, divorced from the factual problems and national traditions, grabbing ever greater competencies and areas of power; that the democratic control mechanisms are failing: in brief, that it cannot go on like this.”
- Former German President Dr Roman Herzog and former president of the German Constitutional Court, article on the EU Constitution, Welt Am Sonntag, 14 January 2007
It is also desirable from the democratic standpoint that there should be national parliamentary input to the EU legislative process before Ministers go to Council of Ministers meetings in Brussels, so that they can be given guidance or even parliamentary policy mandates beforehand, at least on important matters. This would enable national parliamentarians to have some real input into the adoption of government policy-positions on EU matters before they come for decision on the Council of Ministers. This is allowed for in the Danish EU Parliamentary Scrutiny Committee. It is desirable in Ireland also, although Government Ministers and senior civil servants would very likely resist it.
4. Improving Irish public understanding of the EU:
Public understanding of the EU and issues relating to it would be significantly advanced if Euro-federalists and advocates of EU political union and fuller European integration generally, did not resort so readily to abuse and misrepresentation of people who wish to defend national democracy and national independence in face of the pressures from EU integration to reduce or abandon these.
One egregious and topical example of the kind of misrepresentation that is so common has been the attempt by supporters of the Lisbon Treaty to make out that the threat of conscription into a future EU army was a key theme in No-side propaganda during last June’s Lisbon referendum.
Mr Tony Brown and Foreign Minister Micheal Martin “spinning” tales about conscription to a post-Lisbon EU army.
The undersigned recalls that the first person to raise this scare was Mr Tony Brown in a letter to the Irish Times some months before the Lisbon referendum. In this letter Mr Brown condemned what he said were likely to be the exaggerations and false-claims of No-side people, as illustrated by their putting around this scare-story about conscription to an EU army in previous EU referendums. I was actively involved in all of these referendums and have no recollection of this theme being pushed by No-side advocates at any time in the past. I can say with absolute certitude that it was not made an issue in the Lisbon Treaty referendum by No-side campaigners either.
I was personally in touch with virtually all the No-side groups in the Lisbon referendum and saw most of the items of literature which they produced. None of them sought to make supposed conscription into an EU army an issue, nor do I recollect seeing any slogan or piece of No-side literature which made this particular point.
What did happen was that shortly before the referendum Foreign Minister Micheal Martin made a public statement on TV repeating Mr Tony Brown’s earlier statement about this obviously lurid allegation being an example of alleged No-side untruths and misleading propaganda. This immediately gave the statement metaphorical “legs”, as it were. People who did not know anything about an EU army – which is in fact envisaged in the Lisbon Treaty, titled “a common defence”, as distinct from “a mutual defence”, which is something the Treaty also envisages - may have said to themselves: perhaps there is something in this notion of conscription after all if the Foreign Minister is getting so hot and bothered about it!
It was undoubtedly primarily Yes-side people who were responsible for this nonsense, not the much-maligned, much-misrepresented and much insulted No-side proponents, whose genuine concerns about the Lisbon Constitution have been so contemptuously dismissed by so many Yes-side spokesmen. Many Yes-side spokesmen in Ireland have also done their best to create the impression abroad that Irish voters rejected the Lisbon Treaty because of fears about conscription to an EU army, which clearly were not in the treaty. They have thereby sought deliberately to misrepresent and denigrate the democratic vote of their fellow-countrymen.
The failure of the Referendum Commission to carry out its statutory duty
When it comes to advancing public understanding of the EU and EU Treaties, the Oireachtas Sub-Committee should also not ignore in its deliberations the failure amounting to constitutional delinquency of the supposely independent Referendum Commission.
The statutory Referendum Commission was given over ¤5 million of public money to carry out its function under the 1998 Referendum Act of explaining to voters the significance of the constitutional amendment they were voting on and its text, yet it significantly failed to do this, for otherwise the No vote would almost certainly have been higher.
What the Referendum Commission did do was to summarise and regurgitate much of the contents of the highly tendentious booklet on the so-called “Lisbon Reform Treaty” which was published by the Department of Foreign Affairs. This booklet purported to be a summary of the main provisions of Lisbon, but it completely failed to explain the significance of the constitutional amendment, why it was being proposed and why the Constitution had to be changed to permit Lisbon to come into force, and what the implications of adopting it would be. Yet this is what the 1998 Referendum Act required the Referendum Commission to do.
Thus the Commission failed to explain to citizens the first two key sentences of the proposed Constitutional Amendment set out in the 28th Amendment of the Constitution Bill. This made clear that the new European Union which would be established by the Lisbon Treaty would differ constitutionally in profoundly important ways from the present EU that is founded on the Maastricht Treaty. The Referendum Commission failed even to mention in its publicity material that Lisbon would abolish the European Communities which Ireland joined in 1973 and which are explicitly mentioned in the Constitution, so that it would leave the Atomic Energy Community (EURATOM) as the sole European community in being.
It failed to inform citizens that Lisbon proposed to take away from Member States the right to decide who their national commissioner would be in the ten years out of every 15 when Lisbon provides that they may have a fellow-national on the Commission. The Referendum Commission omitted many other key facts about the Treaty and the Constitutional Amendment in its publicity material. At the same time its chairman made two interventions in relation to disputed matters in the debate, something which had never been done by previous Commissions, in one of these interventions getting his facts clearly wrong.
The Referendum Commission, conflicts of interest and questionable tendering procedures
The Referendum Commission sought legal advice from solicitor firm A and L Goodbody, although this firm represented some Yes-side interests. It relied on Murray Consultants for printing and public relations, the contact person for whom appeared on the Commission’s press releases and was a former press director of the Fianna Fail Party.
Although the Referendum Act provides that the Commission may engage such consultants and advisers as it sees fit, the tender for ¤3.5 million of marketing and advertising for the Lisbon campaign was advertised three weeks before the Referendum Commission itself was called into being. The request for tender stated that the tenders were to be submitted to the Department of Foreign Affairs, even though the holding of referendums and the establishment of the Referendum Commission is a matter for the Department of the Environment and Local Government. No explanation has been provided for the involvement of the Department of Foreign Affairs and no confirmation has been given that the choice of Murray Comsultants was that of the Referendum Commission itself and not the Department of Foreign Affairs. There are several other aspects of the Referendum Commission’s work during the Lisbon referendum which are disquieting from a democratic point of view. It is to be hoped that these will be thoroughly probed when the Commission makes its statutory report to the Oireachtas, as must be done by mid-December.
Ensuring that the Referendum Commission abides by its terms of reference and does a proper job in explaining the significance of the constitutional amendment to citizens is clearly fundamental to improving public understanding of the EU and its importance for Ireland’s future. Such understanding is never more important than when the people are being invited to change their Constitution to ensure the superiority of EU law or not.
Appended below is our preliminary submission made to the Oireachtas Sub-committee on Ireland’s Future in the EU on 22 October 2008.
The Oireachtas voted the Commission over ¤5 million to enable it do its job of informing citizens what the Lisbon referendum was about. Rarely can public money have been spent to such ill effect. The Commission spent ¤2.7 on media advertising. It paid An Post ¤1 million to deliver 2.2 million information handbooks to households. In the circumstances it was a democratic miracle that the majority of Irish voters rejected the proposal to amend the Irish Constitution. If the Commission had done the job it was statutorily required to do, the No-side majority would almost certainly have been much larger, for people would have learned of the constitutional revolution which Lisbon proposed, instead of being kept in ignorance of it.
The Commission Chairman and its members:
Rubber-stamping its Chairman’s remarks instead of speaking with a collective voice:
On Tuesday 13 May Judge O’Neill made a clear error of fact when he stated on RTE that the Laval/Vaxholm judgement of the EU Court of Justice was given before and not after the Lisbon Treaty was signed. The implication of this was that this judgement had been taken into account by the signatories of the Treaty and there was therefore no case for rejecting the Treaty because its framers had not known of it. In fact this Court judgement was given five days after the Lisbon Treaty was signed, so that it could not have been taken into account or responded to by the signatory States. This was an important referendum issue for some No-side campaigners.
Mr Justice O’Neill’s mistake thus helped one side as against the other. Future Referendum Commissions should veto any attempts at such solo flights by their chairman and follow the sound procedures set out in previous referendums by retired Chief Justice Finlay.
Conflicts of interest on legal advice and public relations consultants:
The Government’s own E-tenders website, however, showed that the request for tender for ¤3.5 million of ‘Marketing, Communications and Project Management Consultancy services for the Referendum Commission’ was published on 19 February 2008, three weeks before the Referendum Commission was called into being on 6 March 2008. Disturbingly, the request for tender stated that tenders were to be submitted to the Department of Foreign Affairs, even though the holding of referendums and the establishment of the Referendum Commission is a matter for the Department of the Environment and Local Government. No explanation has been provided for the involvement of the Department of Foreign Affairs and no confirmation has been given that the choice of Murray Consultants was that of the Referendum Commission itself and not the Department of Foreign Affairs.
The most sensible, effective and probably the cheapest way for the Referendum Commission to get legal advice on an EU Treaty if it needs that, is to hire two top-rank authorities on EU law, one who favours a Yes vote and the other who favours a No, and when they cannot agree on a matter of legal interpretation, the members of the Commission should make up their own minds. If the disagreement on interpretation persists among themselves, it should inform the public of that fact. This is the way in which the function of providing the public with accurate information on contentious issues is carried out by statutory bodies similar to the Referendum Commission elsewhere, for example in Denmark.
The Referendum Commission’s profound failure to carry out its statutory function of explaining the actual Constitutional Amendment and its text to Irish voters:
To help Irish citizen-voters carry out their legislative task the Referendum Act imposes on the Referendum Commission the statutory obligation “to prepare a statement or statements containing a general explanation of the subject matter of the proposal (i.e. the proposal to amend the Constitution) and of the text thereof in the relevant Bill and any other information relating to those matters that the Commission considers appropriate“.
In view of this clear injunction from the Oireachtas it is surprising that neither the Referendum Commission’s web-site when it was first set up, nor the Handbook which it sent to all voters, gave the text of the proposal to amend the Irish Constitution, or even a summary of it. The text was put on the web-site following private representations by this organisation, but no change was made to the Handbook.
The Commission’s Handbook to Voters was significantly misleading - by omission - in that it stated, on Page 2: “You are being asked to decide whether or not to change the Constitution of Ireland to allow Ireland to ratify the Treaty of Lisbon.” But that was only part of the decision Irish voters were asked to make on 12 June 2008 in the proposed Constitutional Amendment.
The first sentence of the Constitutional Amendment which was set out in the 28th Amendment of the Constitution Bill made clear that the Amendment’s purpose was for the people to give permission to the State to ratify the Treaty of Lisbon AND to “be a member of the European Union established by virtue of that Treaty.”
However, the Referendum Commission’s explanatory material made no reference whatever to the latter part of this sentence, despite its obvious importance. Nor did it make any reference to the important sentence following, which would give the “laws, acts and measures” of the proposed new post-Lisbon European Union constitutional supremacy over the Irish Constitution and laws.
The following are the first two subsections – the centrally important ones – of the English text of the Constitutional Amendment which was put before Irish voters on 12 June 2008 and which was “the subject matter of the proposal and text thereof in the relevant Bill” that it was the statutory duty of the Referendum Commission to explain to citizens:
“10: The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007, and may be a member of the European Union established by virtue of that Treaty.” (emphasis added)
11: No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union referred to in subsection 10 of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.”
By omitting any reference in the explanatory material on its web-site or in its “Voters’ Handbook to “the European Union established by virtue of that Treaty”, viz. the Lisbon Treaty, the Referendum Commission failed fundamentally in its statutory duty of explaining to voters the profound constitutional difference between the European Union which would be established by the Lisbon Treaty and the European Union which we are currently members of and which was established by the 1993 Maastricht Treaty.
The Commission thus failed to inform voters that the legally new European Union which would be established by Lisbon would, unlike the present EU, have the constitutional form of a supranational Federation in which Ireland and the other EU Member States would have the constitutional status of regional or provincial states, and of which we would all be made real citizens for the first time, rather than our being just notional, symbolic or honorary EU “citizens” as at present.
One can only be a citizen of a State and all States must have citizens. As real citizens of the constitutionally new European Union to be established by Lisbon - and in contrast to the current EU which was established by the 1993 Maastricht Treaty – we would owe the post-Lisbon EU the normal citizens’ duty of obedience to its laws and loyalty to its authority over and above our obedience and loyalty to the Irish State and the Irish Constitution and laws.
Lisbon would amend the existing European Treaties to make EU citizenship “additional to” rather than “complementary“ to national citizenship. We would still retain our Irish national citizenship in the post-Lisbon Union, but our new dual citizenship post-Lisbon would not be citizenship of two different States, but rather of the federal and regional-provincial levels of one State, as is normal in such classical Federations as the USA, Federal Germany, Switzerland and Canada.
The Irish Constitution would remain in being after Lisbon – just as the various states of the Federal USA still retain their constitutions - but it would be subordinate to the EU Constitution in any case of conflict between the two. The rights and duties attaching to our new EU citizenship would also be superior to the rights and duties attaching to our national citizenship in any case of conflict, because of the primacy of EU law over national law in the post-Lisbon Union, as indicated in the second sentence of the proposed Constitutional Amendment quoted above.
The present EU is not a State and does not have legal personality such that it can have citizens as members. The “European Union established by virtue of the Lisbon Treaty“, which is referred to in the first and most important sentence of the 28th Amendment of the Constitution Bill, would be quite otherwise in this and other respects.
These are major constitutional changes by any standard - for the EU, for its Member States and for Irish citizens. Yet there was not a hint of them in the publicity material issued by the Referendum Commission: not a word about EU citizenship; not a word about Lisbon’s abolition of the European Community that we have been members of since 1973; not a word about Lisbon’s establishing a constitutionally new European Union, with legal personality for the first time, with power to sign international treaties in all areas of its competence, with the same name but politically, legally and constitutionally with the form of a supranational European Federation - a very different entity altogether from the present EU.
The result? . . . Concealment from the Irish people of the constitutional implications of what they were voting on – by the very body which was set up by the Oireachtas to inform them!
One can understand that the Government and Yes-side proponents would wish to keep these major constitutional changes which would be made by the Lisbon Treaty from the attention of Irish voters. But for the Referendum Commission to say nothing about them in its publicity material was a shocking delinquency. It could have had dire constitutional results for this and future generations of Irish people if Irish voters had voted Yes – not to speak of their implications for the peoples of Europe, who are being denied referendums on this profound political and constitutional change by private agreement among their Prime Ministers and Presidents at their October 2007 summit meeting.
Positively misleading statements in the Referendum Commission’s publicity material on the mode of appointment of European Commissioners under Lisbon:
The Lisbon Treaty provides that Ireland’s present right to “propose“ and decide its national Commissioner, and in effect to have that proposal accepted by the other Member States if their proposals are to be accepted by Ireland (Art. 214, current TEC), would be replaced by a right to make “suggestions“ regarding a name, for the incoming Commission President to decide (Art.17.7, amended TEU). Member States would thus lose their present right to decide who their national Commissioners would be. In other words, the Lisbon Treaty, if ratified, would replace a bottom-up process for appointing European Commissioners by a top-down one.
The Referendum Commission deliberately concealed this important change, which would undoubtedly alarm some voters. Its Handbook to Voters stated on page 5 that “At present, each Member State nominates one member of the Commission“ and then goes on to say: “The right to nominate a Commissioner will rotate among the Member States on an equal basis.”
The use of the same word “nominate” to describe the mode of appointment of European Commissioners pre-Lisbon and post-Lisbon was quite misleading and concealed from Irish voters the fact that the Lisbon Treaty proposes a significant change in the mode of appointing a fellow-national as an EU Commissioner.
* Taoiseach Brian Cowen and Minister Michael Martin give in to Franco-German and EU Commission pressure to permit the remaining Lisbon ratifications to continue, when they could have stopped these by saying that Ireland cannot and will not ratify the Lisbon Treaty, as the Irish people have rejected it.
* The Irish Government lines up with Brussels against the Irish people rather than stands by the people’s democratic decision of last week to defend it vis-a-vis Brussels – so as to bring about a 26/1 situation by year’s end with which to bludgeon Irish voters in a referendum re-run.
* Talk of “respecting” Ireland’s vote turns out in practice to be a cover for setting out to overturn it in a referendum re-run, with Brian Cowen’s, Michael Martin’s and Dick Roche’s full support – and behind a thick barrier of hypocrisy, spoofing and lies.
Friday 20 June 2008
* These are the three principal lies Irish Government Ministers and the EU people are telling to hide their first steps towards preparing this Lisbon referendum re-run:
* LIE NO.1: That the nine EU States that have not yet ratified Lishon have a “right” to do so irrespective of the Irish No. There is no such right under either EU law or customary international law. Brian Cowen could stop any further ratifications by saying to his EU partners that he respects the Irish No, that because of that there is no question of trying to overturn it by re-running the referendum, and that therefore Lisbon is dead because Ireland cannot ratify it and there is no point any other ratifications continuing, for Lisbon cannot come into force unless all 27 ratify it. British Foreign Secretary David Milliband underlined this point last weekend when he said that it depended on Brian Cowen whether Lisbon was alive or dead.
* LIE No. 2: Minister Dick Roche was up to this usual spoofery on “Morning Ireland” today when he attacked Patricia McKenna for saying that the French and Dutch Governments stopped further ratifications of the EU Constitution in 2005 after their peoples voted No in their referendums. Minister Roche said that Luxembourg held a referendum on this Treaty after the French and Dutch No and in his usual gentlemanly fashion accused Ms McKenna of “telling lies”. In fact, as the Minister is well aware, the Luxembourg referendum was held shortly after the French and Dutch referendums but BEFORE the French and Dutch Governments decided they would not re-run them, and therefore that they could not ratify the Constitutional Treaty – which led the remaining EU States, including Ireland, to abandon further ratifications at that time.
Messrs Cowen, Martin and Roche are spoofing like this, with their EU confreres helping them, to try to cover up the fact that the Irish Government is urging the nine remaining EU States to continue with their ratifications so as to bring about a 26/1 situation which can then be used to pressurise the Irish people to turn their No into a Yes in a second Lisbon referendum.
It is Messrs Cowen, Martin and Roche who are failing to “respect” the Irish people’s No vote by effectively telling the other EU States not to respect it either, but to continue with their ratifications. Why should the other EU States respect last Thursday’s referendum result when the Irish Government does not respect it, but sets out rather to subvert it, as they decided to do even while the voting tallies were being counted on Friday morning last?
Remember Foreign Minister Martin saying at luncthtime on the day of the count that “of course” the remaining ratifications would continue. Remember Commission President Barroso’s at his press conference held before the count was even finished, following a phone chat with Taoiseach Cowen, saying the same thing.
If Messrs Cowen, Martin and Roche had a scintilla of the political courage and statesmanship of the founder of their Party, they would be telling their EU counterparts that they had no alternative but to open up Lisbon and work out a better Treaty for Ireland, for Europe and for a more democratic EU, instead of the supranational EU Federation, with laws made on a population basis, which is what is on offer in Lisbon.
* LIE NO.3: That the other EU States can go ahead with the Lisbon Treaty provisions under the rules for “enhanced cooperation”. The barrack-room lawyers of the Irish media are speaking here. It is the enhanced cooperation rules of the EU Treaties as amended by the Nice Treaty that currently apply. It is nonsense to suggest that the enhanced cooperation provisions of one Treaty, viz. Nice, can be used to bring into force the far wider provisions of another Treaty, viz. Lisbon.
* NB: The number of EU Commissioners must be decided unanimously.
Under the current Nice Treaty(Protocol on the enlargement of the EU, Article 4), a reduction in the number of Commissioners to fewer than the number of Member States must be decided unanimously in 2009. Under the Lisbon Treaty(Article 17.5 TEU) the number of Commissioners must be reduced by two-thirds from 2014, “unless the European Council, acting unanimously, decides to alter this number.”
At their next summit meeting in October or December the European Council of Prime Ministers and Presidents will make a “European decision” that when it comes to allocating EU Commissioners in 2014 in the post-Lisbon EU, Ireland and all Member States will be permitted to retain a permanent Commissioner, although in practice there may be senior and junior Commissioners. Because both the Nice and Lisbon Treaties lay down that arrangements for the Commission require unanimity, a commitment on these lines can be given without opening Lisbon.
Taoiseach Cowen will present this as a triumph for Irish diplomacy, while his EU colleagues will smile cynically to themselves. Then various Declarations will be given – to meet Irish concerns on company taxation, human rights, neutrality etc. – which will be tagged on to the Lisbon Treaty, but wll not alter a jot or tittle of its contents.
What threats or implicit threats will be needed to go with these promises? The most obvious one is that Irish voters will be told, as they were not told over the past months – that the Lisbon Treaty aims to establish a constitutionally new Federal Union and that the Irish must decide whether they want to be members of this or not, or do they want to keep the present EU as it stands under the Nice Treaty rules.
The other Member States still cannot ratify Lisbon and establish this new Union without Ireland’s agreement. But the hope will be that this mix of promises and implicit threats will suffice to overturn the Irish people’s No in Lisbon One and turn it into a Yes in Lisbon Two.
A peaceable democratic popular revolt in Ireland and across the EU is needed to prevent this happening and to prevent the anti-democratic Lisbon Treaty-cum EU-Constitution being clamped on most of the peoples of our continent.
- Anthony Coughlan
The push to turn the European Union into a superpower with many of the features of a Federal State goes back to World War 2, when the continental imperial powers, France, Germany, Italy, Holland and Belgium, experienced the trauma of defeat and occupation. After 1945 they found themselves much diminished in a world dominated by the USA and USSR.