Irish Referendum Practice from McKenna (1995) to McCrystal (2012): How Irish Governments behaved unconstitutionally in serving the EU agenda

By Anthony Coughlan

We will fix that Stalinist body” … Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001, in the lead-up to the second Nice Treaty referendum.

And How They Fixed It:
In December 2001 the Fianna Fail Government then in office put a Bill through the Oireachtas (Legislature) amending the 1998 Referendum Act so as to remove from the statutory Referendum Commission its function of setting out in a fair and neutral manner the relevant arguments for and against any proposed constitutional amendment. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of the relevant Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the Irish media at the time.

1. Irish Citizens as Legislators: Tuilleadh

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Would You Eat This Treaty?

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The scandal of the Irish Referendum Commission in the Lisbon Treaty referendum

(N.B. This press release is being posted to all TDs, Senators and MEPs, to the members of the High Court and Supreme Court, the Referendum Commission and  the Catholic Hierarchy, and to the media and leading activists on the Yes and No sides in the Lisbon Treaty referendum, in the interest of public information. Acknowledgment is made to the web-site posting by Mr Patrick Egan for the information below on the role of  A&L Goodbody Solicitors and Murray Consultants.)

The sheer dereliction of duty of the statutory Referendum Commission during the Lisbon Treaty referendum will assuredly be found shocking by future historians of our times.

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:


The Government appoints the  chairman of the Referendum Commission on an ad hoc basis for every referendum.   For Lisbon it chose High Court Justice Mr Iarfhlaith O’Neill as Commission chairman.  It is a legitimate career expectation of High Court judges that they will be appointed to the Supreme Court or the European Court in Luxembourg. The chairman of the Referendum Commission during the Amsterdam Treaty and Nice Treaty referendums was retired Chief Justice T.A.Finlay, for whom prospects of judicial promotion were irrelevant.

The regular members of the Commission are the Clerk of the Dail (Mr Kieran Coughlan), the Clerk of the Seanad (Ms Deirdre Lane), the Ombudsman (Ms Emily O’Reilly) and the Comptroller and Auditor-General (Mr John Purcell).

Rubber-stamping its Chairman’s remarks instead of speaking with a collective voice:


The Referendum Commission is statutorily bound to act as a collectivity. The statements it issues should be approved by all its members. There is no provision in the Referendum Act which permits the Chairman to arrogate to himself the job of “clarifying” or explaining contentious issues of the referendum debate.  Previous Referendum Commissions never attempted to do anything like that.  Yet at two press conferences during the Lisbon referendum Mr Justice O’Neill  took it upon himself to “clarify”, as he put it,  contentious issues dealing with the implications of the Lisbon Treaty for such matters as company taxation, abortion, neutrality, a WTO veto etc., where political and legal judgements about what could happen if Lisbon was ratified were closely intertwined.

Judge O’Neill’s “clarifications” in each case lent heavily towards the Yes-side interpretation of these matters and were fulsomely welcomed by Government and other Yes-side spokesmen.  Because of the impromptu nature of oral statements the other Commission members could not stand over everything said  by Judge O’Neill on these occasions.  They thereby failed in their duty to express at all times an agreed collective view. They must have been embarrassed when their Chairman was unable to answer a question on the Treaty at his second “clarificatory” press event.

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 Referendum Commission paid  ¤47,000 for legal advice, mostly from solicitor firm A&L Goodbody. It paid ¤358,000 for printing and design of publications, part of the design being done by DMH, a company linked to Murray Consultants, public relations advisers.  Ms Olivia Buckley, one of the two Murray Consultants executives dealing with the Referendum Commission contract, whose name appeared as a contact on Referendum Commission press releases, was, for a period of five years up to the May 2007 general election, the press director of the Fianna Fail Party. She is  a native of Ferbane, Co Offaly and has been closely associated with Taoiseach Mr Brian Cowen.  A&L Goodbody are one of the patrons of Chambers Ireland, an organisation that campaigned for a Yes vote in the referendum, as well as acting as legal adviser for IBEC, another organisation that campaigned for a Yes vote

These conflicts of interest might be overlooked if one could be satisfied that the Referendum Commission itself selected Murray Consultants and A&L Goodbody.  Section 4 of the Referendum Act 1998 provides that the Referendum Commission may from time to time engage such consultants and advisers as it considers necessary or expedient for the performance of its functions, thereby clearly envisaging that any such consultants or advisors will be selected and appointed by the Referendum Commission itself.

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.


In relation to the selection of A&L Goodbody Solicitors as legal advisers to the Referendum Commission, there was not even a public tender process carried out, whether by the Referendum Commission itself or by any government department on its behalf. No information has been disclosed as to when A&L Goodbody Solicitors were selected, who selected them and indeed how they came to be selected.

Under the Referendum Act the Referendum Commission  is required to furnish, within six months of the referendum, a report to the Minister for the Environment and Local Government on the carrying out of its functions. The Minister for the Environment and Local Government is to lay this report before the Dail. It is to be hoped that the serious questions relating to the appointment of the Commission’s legal advisers and PR people, and the validity of the tendering process, will be addressed in this report or else raised in the Dail.

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:


The poor quality of the legal advice adopted by the Referendum Commission is shown by the fact that the Commission substantially  failed to carry out its statutory duty under the Referendum Act establishing it.

Irish referendums are a form of direct legislation in which citizens are legislating on a Bill to amend the Constitution and  deciding whether to adopt or reject that Bill. In the case of the Lisbon Treaty, the proposed constitutional amendment was set out in the 28th Amendment of the Constitution Bill 2008.

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.


This misleading nature of the phrase “right to nominate” was brought privately to the Referendum Commission’s attention by the undersigned when it first appeared on the Commission’s web-site, but that led to no change. The same misleading statement  later appeared in the Referendum Commission’s Handbook posted to voters.

(Signed)
Anthony Coughlan
Secretary
The National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9
Web-site:  nationalplatform.org
Tel.: 01-830579

1 September 2008

An Open Letter to Stephen Collins (Political editor, The Irish Times)

The National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9

Tel.: 01-8305792
Web-site nationalplatform.org

Thursday 6 August 2008

Dear Stephen,
In your Irish Times article last Saturday you call on the Government to ratify the Lisbon Treaty regardless of the 12 June referendum result.

It is strange that a political correspondent of a major national newspaper should seek to become a partisan player in the political game in this way.

Stranger still that you should be urging such a profoundly unconstitutional and undemocratic course on our political leaders.

You are mistaken if you think that Ireland can ratify the Lisbon Treaty by Oireachtas vote without a referendum.

The Lisbon Treaty, which is the EU Constitution revamped,  establishes a constitutionally new European Union, with its own legal personality for the first time, which is legally different from the present European Union that was established by the Treaty of Maastricht and which is referred to in Article 29.4  of the Irish Constitution.

The first sentence of the  Constitutional Amendment which the people rejected on 12 June proposed to replace the present Maastricht-based EU by a future Federal-style Lisbon-based EU, of which we would all be made real rather than symbolical citizens for the first time.

The same name,  “European Union”,  would be used post-Lisbon as pre-Lisbon, but the constitutional and political character of the Union, its Member States and of us as Irish citizens would be transformed fundamentally by the ratification of the Lisbon Treaty.

No Oireachtas vote is constitutionally capable of doing this.  With all due respect to you, it is irresponsible to be speading illusions otherwise.

The  Lisbon Treaty would also abolish the European Communities other than the Atomic Energy Community which we joined in 1973, and would  replace the Treaties on which they are based and  which are explicitly referred to in the Irish Constitution.  These references would have to be deleted also to enable the State to ratify Lisbon. No Oireachtas vote can do that either.

And there are several other reasons why the Constitution would have to  be amended to enable the Lisbon Treaty to be ratified.

Your article proposes an  attempt to get around the constitutional  requirement, laid down in the 1986-7 Crotty judgement of the Supreme Court, that surrenders of sovereignty to Brussels in European Treaties can only be done by the Irish people in a referendum, for they are the repositories of sovereignty.

I was myself intimately involved in the Crotty case and attended every day of the three hearings of the case: the original Injunction action before Judge Donal Barrington, the High Court stage which Raymond Crotty lost, and the Supreme Court stage which he won.

You may be interested to know that it was quite a close-run thing that Crotty did not win his court challenge to the constitutionality of the ratification procedure of the Single European Act on the ground that that Treaty’s central provisions entailed a transfer of sovereignty to Brussels, but on the narrower ground that the requirement to coordinate  foreign policy under “European Political Cooperation” entailed such a transfer.

The late Judge Henchy was the swing judge on this point in the five-man court.

Crotty’s lawyers were reliably informed at the time by sources close to the judges that Judge Henchy was anxious to find for Crotty, but that if he did so in relation to the core elements of the Single European Act which had previously been approved by Oireachtas vote, he would effectively have been finding the country’s President at the time, the late Patrick Hillery, as having failed to refer a constitutionally dubious Bill purporting to ratify the S.E.A. to the Supreme Court for assessment of its constitutionality.

Judge Henchy wanted to avoid embarrassing the President, so he approved the main provisions of the S.E.A. as having been covered by the original “license”  for Ireland to join a developing European Community, but he joined with the majority of the court in striking down the foreign policy provisions, which did not require Oireachtas approval, as being unconstitutional.

So the Crotty judgement was a highly political one amongst the five Supreme Court judges themselves!  These facts are not widely known, but I assure you they are correct.
It follows therefore that one cannot assume that the transfers of sovereignty entailed by the Lisbon Treaty would be similarly indulged by the present Supreme Court if the matter should come before it, as you implicitly propose in your article.

Judge Henchy moreover made quite clear in his own judgement in the Crotty case that if the then European Community were to move towards becoming a Political Union, a constitutional  referendum would be required here to permit that.  The European Union that would be established by the Lisbon Treaty -  which is the 2004 EU Constitution revamped -  is undoubtedly such a Political Union.

In your article you insult the No-side campaigners by saying that they were “unhampered by any allegiance to the truth”.

Truly this is the pot calling the kettle black!
I do not recollect you or your fellow Yes-side commentators alerting people during the referendum to the hugely important fact that the post-Lisbon EU would be constitutionally and politically profoundly different from the pre-Lisbon EU. . .

Or to the fact that we would be made real  citizens for the first time of this post-Lisbon EU, owing obedience to its laws and loyalty to its authority over and above our citizens’ duty to the Irish Constitution and laws. . .

Or to the fact that in the post-Lisbon EU the Irish Government would lose the right it has at present to decide who its national Commissioner would be when we have a member on the Commission, and that this would be replaced by a right to make “suggestions” only for the incoming Commission President to decide -  so replacing the present bottom-up process for appointing the Brussels Commission by a top-down one post-Lisbon . . .
Or to the fact that Lisbon proposes to restore the death penalty in Europe for the EU as a corporate entity in time of war or imminent threat of war, by providing that the post-Lisbon EU would accede to Protocol 6 of the European Convention on Human Rights, which permits the use of the death penalty in such circumstances, rather than  to Protocol 13, which abolishes the death penalty at all times and which the individual Member States have separately acceded to.

This matter has caused national outrage in Austria and some controversy  in Germany, but scarcely anyone has heard about it here in Ireland.

But maybe you would dismiss that too as just another No-side “untruth”?

Yours etc.

Anthony Coughlan
Secretary

Irish Times: “Lisbon would turn Ireland into a province”

Irish Times  article, Friday 16 May
 
VOTE NO TO LISBON AND REJECT EUROPEAN FEDERAL STATE

Lisbon would  turn Ireland into a province or region of an EU superstate and make us citizens of it first rather than of the Irish Republic
 
by 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.
One response of their political elites was to decide that if they could no longer be Big Powers individually on their own, they would seek to be a Big Power collectively. This is not the full story of European integration, but it is perhaps the most important part of the story. 

The Lisbon Treaty is the constitutional culmination of the federalist project which has been the political dynamic of European integration ever since the Schumann Declaration of 1950 proclaimed the European Coal and Steel Community to be “the first step in the federation of Europe”.

The EU commemorates that Declaration on  9 May each year – Europe Day.  Fifty years later, in 2004, Belgian Prime Minister Guy Verhofstadt proclaimed the EU Constitution to be “the capstone of a European Federal State”.
When the French and Dutch rejected the EU Constitution in their 2005 referendums, the Prime Ministers and Presidents decided to give the EU the constitutional form of a Federation indirectly rather than directly.

This the Lisbon Treaty does by amending the two existing European Treaties instead of replacing them entirely  by a formally titled Constitution. But the legal-political effect is the same.

THE CONSTITUTIONAL AMENDMENT WE WILL VOTE ON 

The first sentence of the Amendment which the Government is asking  to insert into the Irish  Constitution provides that the State may ratify the Treaty of Lisbon and “may be a member of the European Union established by virtue of that  [Lisbon] Treaty.”  

This sentence shows that the European Union which would be established by the Lisbon Treaty, although having the same name, is constitutionally and politically a different Union from that which we are currently members of, which was established by the 1993 Maastricht Treaty.

The second sentence of the Constitutional Amendment would then give the constitution of this post-Lisbon Union supremacy over the Irish Constitution:-


“No provision of this  [Irish] Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union referred to Š 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.”
This post-Lisbon EU would have the constitutional form of a supranational European Federation – in effect a State – in which Ireland and the other Member States would have the constitutional status of provincial or regional states.

From the inside the Union would look like something based on Treaties between States. From the outside it would look  like a State itself.  This constitutional revolution in both the Union ands its Member States would be brought about by four legal steps which are set out in the Treaty, as they were in the previous EU Constitution:

Firstly, Lisbon would give the post-Lisbon Union full legal personality separate from and superior to its Member States, so that it could act as a State in the international community of States, sign Treaties with other States in all areas of its powers, have its own political President, Foreign Minister(High Representative), diplomatic service, embassies and Public Prosecutor, and make most of our laws.

Secondly, Lisbon would abolish the European Community which we joined in 1973 and which still exists as part of the present EU, and replace it by the new Union (Art.1 TEU). 


Thirdly, it would give the new Union a unified constitutional stucture so that all areas of government would come within its aegis either actually or potentially(Art.4 TEU, Arts.1-6 TFEU).  The only major feature of a fully developed Federation which the EU would then lack would be the power to force its Member States to go to war against their will.

SUBORDINATING THE IRISH CONSTITUTION TO THE EU CONSTITUTION   

Finally, Lisbon would make us all real citizens for the first time of this post-Lisbon Union, rather than our being notional or honorary EU “citizens” as at present(Art.9 TEU).

One can only be a citizen of a State and all States must have citizens. As real EU citizens we would owe it the duty of obedience to its laws and loyalty to its authority over and above our obedience and loyalty to Ireland and the Irish Constitution and laws.
We would still retain our national Irish citizenship, 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 – 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. 

One indicator of the constitutional change which Lisbon would bring about is that Members of the European Parliament, who under the present Treaties are “representatives of the peoples  of the Member States brought together in the Community”, would become “representatives ofthe Union’s citizens in the post-Lisbon EU(Art.14.2 TEU).  

Another is that the European Council, the summit meetings of Prime Ministers and Presidents, would become an EU institution for the first time, legally bound to forward the interests of the Union, not of the national Governments or electorates concerned, so that its acts or its failing to act would be subject to judicial review by the EU Court of Justice(Art.13 TEU).

Couple these constitutional changes with the power-political changes which Lisbon would bring about and it is clear that the Lisbon referendum confronts the Irish people with a momentous choice.

The most important power-political change is that Lisbon would base law-making in the post-Lisbon Union primarily on population size.

 This would double Germany’s relative voting strength on the Council of Ministers from its present 8% to 17%. It would increase the voting weight of France, Britain and Italy from their present 8% to 12% each and it would halve Ireland’s weight from 2% to 0.8%.(Art.16.4 TEU)
As well as our being deprived of a voice on the EU Commission, the body which proposes all EU laws, for five years out of every 15, a little noticed feature of Lisbon’s provisions is that when it comes to our turn to have an Irish Commissioner, we would  lose the right to decide who he or she would be. Henceforth Ireland would be able to make “suggestions” only, for the new Commission President to decide(Art.17.7 TEU). 
It is surely a major historical moment by any standard: this attempt to turn four million Irish people and nearly 500 million Europeans into real citizens of a real EU Federation, without most of them being aware of it, and without any but us Irish being allowed to have a direct say on it.  

If Lisbon is ratified it is bound to lead to major democratic reactions across Europe when people discover that their national independence and democracy have been filched from them. That is why the best course for the Irish people is to vote No to Lisbon on 12 June, as the French and Dutch did to its virtually identical predecessor, for their own sakes and for Europe’s.
_______
Anthony Coughlan is secretary of the National Platform EU  Research and Information Centre, 24 Crawford Avenue, Dublin  9;  Tel.: 00-353-1-8305792;   Web-site: nationalplatform.org

Barroso, Bonde and Ireland’s company Taxes

Monday 28 April 2008


Barroso, Bonde and  Ireland’s company Taxes . . . Excerpt from “Bonde’s Briefing” by Jens-Peter Bonde MEP, Chairman, Independence and Democracy Group in the European Parliament, forwarded for your information

Misinformation in Ireland

I was in Ireland this weekend (18 April). Accidentally I met the Commission President José Manuel Barroso at the University of Cork. I had two other meetings. He made a splendid speech, particularly when he went outside his manuscript.

It became clear to me that his civil servants had agreed a part of his speech with the Irish Government representatives to mislead Irish citizens about a hot issue in the Irish debate: their low corporate tax at only 12.5 %.

Mislead is a strong – but very precise – expression. Barroso said there was nothing new in the Lisabon Treaty about taxes.

This is positively wrong. The new Art.113 TFEU(Treaty on the Functioning of the EU)  about taxes adds a new phrase of “and to avoid distortion of competition” as an amendment to the Article.  This is a clear invitation to the European Court of Justice to outlaw the very distorting low Irish rate.

Today the EU is only competent to harmonise tax laws under Article 113 if it is “necessary to ensure the establishment of the internal market”.  With this Lisbon Treaty amendment the EU can also harmonise  tax laws if competition is distorted – this is a much wider concept. When is competition not distorted by differences?

In a new special Protocol to the Lisbon Treaty, “Protocol on the Internal Market and Competition” (No. 4),  it is also added that the Internal Market “includes a system ensuring that competition is not distorted”. National hindrances can be outlawed, even by legislation based on the so-called “Flexibility clause” referred to in this Protocol.

In Art.116 TFEU distortions of competition can be hindered by laws decided by qualified majority voting in the Council. First, the Commission consults the distorting Member State.  Article 116 then provides: “If such consultation does not result in an agreement eliminating the distortion in question, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall issue the necessary directives. Any  other appropriate measures provided for in the Treaties may be adopted.”

In the Reader-Friendly Edition of the Consolidated Treaties which I have edited (see euabc.com )  the text in bold is the new addition to Article 113 on  corporation taxes made by the Lisbon Treaty: “and to avoid distortion of competition”. Hindrances  may be eliminated by majority voting.

So, if I was Irish and interested in the low corporate tax – which I am not – I would propose a strong Protocol to protect the low rate. It is not difficult to foresee an attack from another country – or company. The French Presidency has already signalled its plans for taxation before they enter into office 1 July.

The Irish Government has criticized the French intentions. Well, the  tax issue is also included in the annual work program for Barroso’s European Commission for 2008!


“Work will also be continued in order to allow companies to choose an EU-wide tax base as set out in the 2008 Annual Policy Strategy. An impact assessment has been launched to examine the options and their implications”, it is said at page 7 of the Work Programme.

The Commission will only publish their proposal – after the Irish referendum. All controversial proposals are delayed before referendums. This is normal practice for the Commission. It is only un-normal that the method has been leaked to the press with the publication of a private e-mail from a British diplomat referring  to information received from the Irish Government in confidence.

The Commission is working on a proposal to harmonise – maybe not the rate, but the base for calculating corporate taxes. The economic effect for Ireland may be the same.

Ireland has earned a lot on multinational companies settling in Ireland but selling products to the whole of the EU. Now, the Commission proposal – according to rumours – will distribute profit for taxation according to the spread of the turnover.

It does not sound surprising – or unjust – to me. This is the way the Commission is thinking – in spite of the Barroso speech to calm the Irish voters before their referendum scheduled for 12 June.

A joint rate will require unanimity, yes. But to outlaw the low rate in a Court verdict only requires a simple majority in the EU Court of Justice in Luxembourg. It is mis-leading not to tell the Irish the full truth about the Lisbon Treaty and taxation.

Even new direct taxes for the Union could be introduced by the Lisbon Treaty.  See Art. 311 TFEU on the establishment of new Union “own resources” by unanimity among Member States.

“…it may establish new categories of own resources”, it is said in the new Art. 311 inserted by Lisbon.

It is also said stated: “The Union shall provide itself with the means necessary to attain its objectives and carry through its policies”.
< http://www.bonde.com/index.php/bonde_UK/article/bondes_briefing_23042008 >

A Note on Jens-Peter Bonde MEP

The author of the above statement, Jens-Peter Bonde, Danish MEP, has just edited  a “Reader-Friendly Edition of the Consolidated Treaties as Amended by the Treaty  of Lisbon“. This shows the additions to the two main EU Treaties that would  be made by Lisbon in bold type,  and the deletions in strikethrough.

This volume contains an invaluable index which will enable anyone interested in a particular topic to find easily the Consolidated Treaty Articles relating to it and to see how these would be affected by any deletions or additions made by the Lisbon Treaty.

This Reader-Friendly Edition of the Lisbon Treaty is now  downloadable free from  bonde.com.

Bonde has also written a short 100-page book describing the background to the Treaty  and giving a general analysis of it: “From EU Constitution to Lisbon Treaty”. This will be downloadable later this week from  the web-sites:  bonde.com and euinfo.ie

Jens-Peter Bonde was a member of the Convention on the Future of Europe which drew up the original  EU Constitution that  would now be brought into being indirectly rather than directly  by means of  the Lisbon Treaty.  He has been an MEP since the first direct elections to the European Parliament  in 1979 and  he is retiring  from the Parliament on 9 May, Europe Day, having recently reached his 60th birthday. He first came to Ireland in 1986 to express support for  the late Raymond Crotty in his constitutional action on the Single European Act, which led to the current referendum on the Lisbon Treaty. He is chairman of the Independence and Democracy Group in the European Parliament to which Munster MEP Kathy Sinnott  belongs.  He has written some 40 books on EU-related topics over the years and  is widely known and respected for his tireless work over decades for a more transparent, less centralised and  more democratic European Union.  Together with Ireland’s John Gormley and others he produced a minority report on an Alternative to the EU Constitution at the close of Giscard d’Estaing’s Convention on the Future of Europe in 2004.
For enquiries contact Anthony Coughlan at 01-8305792.

Jens-Peter Bonde himself may be contacted  at the European Parliament at 00-32-2-2845167 and at Jens-Peter.bonde@europarl.europa.eu


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