Two Steps to a Fiscal Union for the Eurozone… & A Third Step to Distract Attention from the First Two

The Urgent Need at a Minimum For a Government White Paper

“It would be tragic and fatal if we were to lose democracy on the road to saving the euro”

- Dr Andreas Vosskuhle, President of the German Constitutional Court, 2011

“There are 27 of us. Clearly, down the line, we will have to include the Balkans. There will be 32, 33 or 34 of us. No one thinks that federalism, total integration, will be possible with 33, 34, or 35 States. Clearly there will be a two-speed Europe: one speed that moves towards a Federation for the Eurozone and one speed for a Confederation within the European Union.”

- French President Sarkozy, 8 Nov. 2011

BACKGROUND:

The Economic and Monetary Union which Ireland signed up to under the 1992 Maastricht and 2009 Lisbon Treaties assumed that the 3% and 60% of GDP deficit rules for every Eurozone State would be abided by and enforced by means of the sanctions – warnings, special deposits, fines etc. – which are set out in those treaties.  If they had been and if the rules of the EU treaties had been enforced for all, there would have been no sovereign debt crisis in the Eurozone and no need for any Eurozone bailout fund, either temporary or permanent.

When Germany and France broke the rules of the EMU by running big government deficits in 2003, the EU treaty sanctions to enforce the 3% and 60% deficit rules were not applied against them, and they were thereafter effectively dropped for everyone else. Ireland did not break these excessive deficit rules however.

Now – to deal with the dire consequences for millions of people of this failure to enforce the rules of the original EMU, while at the same time increasing their own political sway over the Eurozone –  Germany and France, supported by the Brussels Commission, are seeking to change the whole basis of the Economic and Monetary Union which Ireland signed up to. They are doing this by establishing a permanent  €500 billion ESM bailout fund which is to be surrounded by a whole panoply of controls over national budgetary policy, including the permanent balanced budget rule (0.5% deficit rule) proposed in the “Fiscal Compact Treaty” that German Chancellor Merkel insisted on over Christmas.

In considering the possible implications of all this it is worth bearing in mind that in 2014, just two years time, under the Lisbon Treaty Germany’s vote in making EU laws will double from its present 8% of total Council votes to 16%, while France’s and Italy’s vote will go from their present 8% each to 12% each, and Ireland’s vote will halve to 1%. Similar proportional changes will be made in voting within the Eurozone.

The temporary Eurozone bailout fund, the European Stability Facility (EFSF), which was established to lend money to Greece in May 2010, and from which Portugal and Ireland subsequently got bailouts, was established under Art.122 TFEU of the EU Treaties. This Article permits Union financial assistance to be granted when a Member State is in “severe difficulties caused by natural disasters or exceptional occurrences beyond its control”. Excessive budget deficits built up over long periods of time are scarcely what this Article was meant to cover, so the very questionable legal basis, to say the least, of the temporary fund has led to this Article being now abandoned and replaced by an entirely new EU Treaty provision, an amendment to Article 136 TFEU, to give a long-term legal basis in European law to the permanent €500 billion bailout fund which the Eurozone States want to set up from this July. Ireland commits itself to making an €11 billion contribution to this fund in various forms of capital by means of the European Stability Mechanism (ESM) Treaty which can be concluded amongst the 17 Eurozone countries once the EU 27 have amended Art.136 TFEU so as to give permission for it in European law.

The Government wants the Dáil and Seanad to approve this hugely important Article 136 TFEU amendment to the EU treaties during the current Dail term without any referendum of the Irish people even though this amendment and its legal/political consequences would mark a qualitative change in the direction of the EU and in the character, scope and objectives of the Economic and Monetary Union which the Irish people signed up to when they approved by referendum the 1992 Maastricht and the 2009 Lisbon Treaties. The amendment to Article 136 would extend the scope of the existing EU treaties significantly and bears a huge weight of legal/political consequences. It 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 the mechanism will be made subject to strict conditionality.”

Approval or non-approval by Ireland of the authorization by the 27 EU States of this permanent bailout fund for the Eurozone is the only thing on which the State still has a veto – unless the Dáil and Seanad throw that veto away by failing to insist on it being used. That is why the media and opinion-formers should urge the Government to exercise it. If the Government is too afraid of the wrath of “Merkozy” and the Brussels Commission to do that, our media and public opinion should call on some public-spirited party or individual to challenge that failure before the Courts.

For if a referendum on approval of the European Council Decision to adopt the Art.136 EU amendment were found to be constitutionally necessary in Ireland, it would put the State in a powerful position to exact major concessions on the national debt, on the Anglo-Irish promissory notes and on the terms of the Troika’s Memorandum of Understanding in order to persuade Irish voters to agree by referendum to the Art.136 amendment of the EU Treaties permitting a permanent Eurozone bailout fund to be established. Why should the Government throw away Ireland’s best bargaining card in this way? Why should it be afraid to take the only course which offers hope of rapid radical relief to the people’s current dire straits?

Such a constitutional challenge, if it were to be taken, would need to show that the Article 136 TFEU amendment to the EU Treaties is a claim to, and an assertion of, a significant extension of EU powers, scope and competences which cannot legally be brought into force in Ireland by the “simplifed” EU treaty revision procedure of Art.48(6) TEU that was used to adopt the amendment,  whatever may be the constitutional position in the other EU States … And that therefore approving it in Ireland requires prior permission from voters in a referendum, as a significant surrender of Irish State sovereignty would be involved.  

It is not just issues of EU law that are at stake here. It is widely recognised among economists that the proposed ESM Treaty and the permanent funding mechanism it would establish for the Eurozone, with their accompanying apparatus of controls of national budgets, go nowhere near to solving the current financial crisis of the euro area. A challenge to the constitutionality of the Government’s proposed mode of approval of the Art.136 TFEU amendment would open a valuable opportunity for the adoption by the Eurozone Member States of a more rational and effective scheme for dealing with the area’s financial crisis, with more emphasis on stimulating economic growth and demand across the area, to the benefit of the common good of Ireland and the other Eurozone countries.

STEP 1 TO THE NEW EMU:



The  27-MEMBER EUROPEAN COUNCIL “DECISION” TO MAKE THE ART.136 TFEU AMENDMENT TO THE EU TREATIES

This “Decision” of the European Council of 27 Prime Ministers and Presidents was made in March 2011 (Decision 2011/199/EU) and gives permission under EU law to the 17 Eurozone Member States to set up a permanent bailout fund for the Eurozone.  Ireland has a veto on this Decision, for before it can come into force it must be approved by all 27 EU Member States “in accordance with their respective constitutional requirements”. This means that in Ireland the European Council “Decision” to make this Art.136 amendment requires approval either by the Oireachtas or by the people in a referendum. It calls for the latter if the amendment – despite the implicit claim of those deciding on it that it does not extend EU powers – does in fact extend them, and does in effect entail a surrender of State sovereignty which goes beyond the original “license” which the Irish people gave the State in earlier referendums to join a “developing” European Community/Union.

In other words, approving the “Decision” of the European Council to amend the EU Treaties requires a referendum in Ireland if it can be shown to widen the scope and objectives of the present EU treaties by significantly increasing the powers of the EU. Under the so-called “self-amending” Article 48(6) TEU which was inserted in the EU treaties by the Treaty of Lisbon, the 27-Member European Council of Prime Ministers and Presidents can take decisions to amend most provisions in the policy areas of the EU treaties as long as such amendment does not increase the Union’s powers/competences. For the European Council to purport to authorise under EU law the setting up of a permanent bail-out fund for a sub-group of EU States can arguably be said to be a significant claim to, and assertion of, increased powers for the EU as a whole, as up to now the EU treaties provided for no such fund or mechanism in the Monetary Union either directly or indirectly. The treaties provided rather for an EU Monetary Union which would not require or permit cross-national “bailouts” under any circumstances and would be run on quite different principles to what is being now proposed.

If the Eurozone can set up a Stability Mechanism “intergovernmentally” amongst its 17 Member States, why is any amendment to the EU Treaties by the 27 to permit that needed? It seems plausible to contend therefore that this Art.136 TFEU amendment would put the Economic and Monetary Union which Ireland signed up to when the people ratified the Maastricht and Lisbon Treaties on a quite new and different basis. This new basis would entail a significant move towards a Fiscal Union for the 17 Eurozone States in addition to the Monetary Union, as well as an Irish commitment to a panoply of accompanying supranational controls over national budgetary policy. Therefore it arguably would be unconstitutional for the Oireachtas to attempt to give the necessary approval of such a European Council Decision without an Irish referendum.



STEP 2 TO THE NEW EMU:



THE EUROPEAN STABILITY MECHANISM TREATY (ESM) BETWEEN THE 17 EUROZONE STATES

The European Stability Mechanism Treaty sets up the European Stability Mechanism, an entity with legal personality of which Ireland would become a member. It sets out the institutional structure and rights and privileges of this “ Mechanism”. The Mechanism will include a permanent €500 billion bailout fund and the treaty stipulates the contributions which each of the 17 Eurozone Members must make to it in accordance with a “contribution key” annexed to it. The ESM Treaty provides that the fund may be increased later by agreement and there is already talk of increasing it. Ireland must contribute €11 billion to it “irrevocably and unconditionally” in various forms of capital.  The ESM Treaty was signed by EU ambassadors on 2 February 2012 – replacing an earlier ESM Treaty which was signed by Minister Michael Noonan and other Eurozone Finance Ministers in July last year but which was never sent around for ratification. The 17 Eurozone States have agreed that this ESM Treaty No.2 will be ratified so that it can to come into force by July this year. The Government has in mind to bring it before the Oireachtas for approval in this session, so it is likely to be introduced to the Dáil on Tuesday or Wednesday of next week.

A Dáil motion to approve the ratification of the ESM Treaty for the 17 will presumably be taken at the same time as the motion to approve the “Decision” of the European Council of 27 Prime Ministers and Presidents to insert the Art.136 amendment into the EU Treaties by means of the  “simplified” amendment procedure of Art.48(6) TEU.   There will presumably also be an accompanying European Communities Amendment Bill to implement the Art.136 TFEU amendment and the provisions of the consequential ESM Treaty in Irish domestic law.

The ESM Treaty is to come into force once it is ratified by signatories representing 90% of the initial capital of the fund, so that Ireland has no veto on it.

The preamble to the ESM Treaty states (Recital 5) that it is agreed that money from the permanent ESM fund will only be given to Eurozone States which have ratified the later “Fiscal Compact Treaty” and its permanent balanced budget rule or “debt brake” and that the two treaties are complementary.

In 2011 Attorney-General, Mr Paul Gallagher SC advised the then Fianna Fail Government that there would be no constitutional problem in Ireland with the European Council “Decision” to make the Article 136 TFEU amendment to the EU treaties because, he advised, authorizing a sub-group of 17 Eurozone States to set up a permanent bailout fund for the Euro area does not extend the competences of the EU. Mr Gallagher had previously advised Messrs Cowen and Lenihan on the night of the September 2008 blanket guarantee for the Irish banks. He also advised that the ESM Treaty for the Eurozone which would be authorized by the Art.136 TFEU amendment to the EU treaties would not raise constitutional problems here either. That advice was given however in relation to ESM Treaty No. 1 which was later signed by Finance Minister Michael Noonan and the other Eurozone Finance Ministers but was never sent around for ratification. Mr Gallagher was not dealing with the agreement amongst the Eurozone States in ESM Treaty No. 2 that any money from the permanent bailout fund when that was set up would only be given to States which had inserted a ”debt brake” into their national Constitutions or the equivalent under the provisions of the Fiscal Compact Treaty, for Chancellor Mertkel had not yet even mooted that.

It is desirable that the advice of Attorney-General Máire Whelan SC on the constitutionality of the Art.136 TFEU amendment to the EU treaties and the ESM Treaty No.2 which follows from that, should be made available to the public, preferably through the medium of a Government White Paper.

[N.B. It is unusual for an EU-related treaty to be signed by anyone other than EU Prime Ministers and Presidents. In the case of the ESM Treaty (No. 2) it was signed by Eurozone ambassadors to the EU on 2 February 2012. Was this meant to minimize public attention to its signing?]

A THIRD STEP THAT HAS DISTRACTED ATTENTION IN IRELAND FROM THE FIRST TWO…

THE “FISCAL COMPACT TREATY” (TREATY ON STABILITY, COORDINATION AND GOVERNANCE IN THE ECONOMIC AND MONETARY UNION)

The Fiscal Compact Treaty, properly titled the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), was insisted on by German Chancellor Angela Merkel over winter 2011, essentially as a gesture towards German public opinion. When the Deutschmark was being abolished in 1999 the German people were not told that they would be committed to an EU Monetary Union with a huge permanent bailout fund to which they would be expected to be the principal net contributors. Rather they were told instead that the “no-bailout clause” of the EU treaties, Art.125 TFEU, guaranteed that there would be no bailouts by the others for any Member State using the single currency which did not abide by the excessive deficit rules. Germans are naturally indignant at the radical change in the EMU that is now being proposed. Chancellor Merkel’s insistence on a permanent balance budget provision /”debt brake” being inserted into national Constitutions by means of the Fiscal Compact Treaty, as was done in Germany two years ago, is meant to reassure her voting public that in budgetary matters the other 16 Member States of the Eurozone, including Ireland, will henceforth behave like Germans! Yet most economists regard a permanent balanced budget rule as absurdly inflexible, for Governments do need to run deficits on occasion in order to stimulate their economies and expand economic demand when that slumps heavily in their domestic or foreign markets.

Approving the European Council Decision to insert the Art.136 amendment into the EU treaties, ratifying the subsequent ESM Treaty with its strict budgetary rules in early March and ratifying what is stated to be the “complementary” Fiscal Compact Treaty towards the end of this year will have the effect of removing virtually the whole area of budgetary policy from the national to the supranational level of the Eurozone – without a referendum in Ireland or even a Government White Paper on the implications of that. It should be noted that the additional wording of Art.136, which is being asked to carry a heavy burden of subsequent changes, does not amend or even refer to the “no bailout clause” of Art.125 TFEU.

These developments would remove much of the stuff of national decision-making and normal party politics from the arena of democratic consideration and debate in this country.

The provisions of the Fiscal Compact Treaty were agreed at the EU summit on 30 January but they will not be put into proper treaty form and signed  by the 17 Eurozone States until March – probably at the EU/Eurozone summit meeting on next Friday. They need not be ratified until the end of this year. This treaty provides for a permanent balanced budget rule or “debt brake” of 0.5% of GDP in any one year to be inserted in Eurozone national Constitutions or the equivalent.  All 17 Eurozone States must ratify this treaty, but it comes into force once it is ratified by 12 of them, so that Ireland does not have a veto on it.

The preamble to the Fiscal Compact Treaty refers to the fact that money from the new permanent bailout fund (the ESM fund) will only be given to States which have ratified it. As treaties for the 17-Member Eurozone, both the ESM Treaty and the Fiscal Compact Treaty derive from the 27-Member amendment to the EU Treaties referred to in Step 1 above. Most of the provisions of the Fiscal Compact Treaty overlap with the so-called “Six Pack” of EU regulations and a directive which constitutes the “Reinforced Stability and Growth Pact”, and which were put into EU law last December.



It is important to note that the European Stability Mechanism Treaty and the Fiscal Compact Treaty are not EU treaties binding in EU law, but are rather “intergovernmental treaties” amongst the 17 Member States of the Eurozone, although they provide for the full involvement of the EU Commission and the European Court of Justice in their day-to-day implementation. 



The Government has invited public submissions on this Fiscal Compact Treaty to be made to an Oireachtas Committee over the coming months, which is a most unusual development. Presumably this is meant to distract media and public attention from the implications of approving the Art.136 amendment to the EU Treaties, on which Ireland has a veto, without a referendum, and ratifying the ESM Treaty which derives from that. 

These are clear moves towards a fiscal union for the Eurozone, and the Oireachtas is being invited to approve them in the next couple of weeks without any significant public discussion, at least to judge by the virtual total silence on them to date. At a minimum the Irish public deserves a White Paper on these hugely important developments before Ireland’s last EU veto of significance is abandoned and it becomes too late to save further large areas of our national democracy.



Issued for public information by the
National Platform EU Research and Information Centre

February 27, 2012
janthonycoughlan at gmail dot com
24 Crawford Ave. Dublin 9 01-8305792
First published online @ http://www.indymedia.ie/article/101440

Germany demands a Lisbon III … and the Government and Attorney General Paul Gallagher will come under pressure to obey

It is the Supreme Court, not the Government or its Attorney General, that has the power ultimately to decide whether a referendum will be needed in Ireland if Germany, backed by France, insists on changing the EU Treaties to suit its interests.

Little more than a year since the EU Heads of State and Government assured everyone that no further EU Treaty changes would be needed for the foreseeable future, the same people seem now willing to bow to Germany’s wishes to change the Treaties anew to give the EU more power.

If Treaty changes are agreed in the coming period, the Irish Government, and Attorney General Paul Gallagher SC in particular, will come under heavy pressure to avoid an Irish referendum at all costs, for fear it may be lost.  If Mr Gallagher obliges he can almost certainly expect to face a re-run of the Crotty case.

It was Attorney General Gallagher who advised the Government in September 2008 that a State guarantee of all the debts of Ireland’s private banks was legal and that Irish law required that the creditors and bondholders of the Irish Banks could not be touched in view of such a guarantee.  This opened the way to Finance Minister Lenihan paying €7.9 billion to the senior bondholders of Anglo-Irish Bank just three weeks ago, without any question of them being asked to take a “haircut”, as Irish taxpayers paid up to meet the money foreign investors had lent to Messrs Sean Fitzpatrick and Co.

Elements of the so-called  “bailout fund” for the eurozone that was agreed by the EU Governments last May are almost certainly in breach of Articles 122 to 125 of the Treaty on the Functioning of the European Union. (NB. This is not the Lisbon Treaty, but rather the second of the two basic EU Treaties that were amended by Lisbon and which are currently in force.)

What we see playing out in the current economic crisis is Germany’s attempt, for the third time in a  century, to dominate Europe by means of its dominance of the eurozone –  with France holding on to its coat-tails, as the Vichyist rather than Gaullist tradition governs policy in Paris.

The Irish public should find it instructive to see the Eurofanatics and career-federalistas in Iveagh House, Upper Merrion Street, Kildare Street and the Irish Times positioning themselves in the coming period to comply anew with the wishes of their new Teutonic masters.

The Eurofanaticism that led them to support the Maastricht Treaty abolishing the Irish national currency and to join the euro-zone in 1999 – an area with which we did only one-third of our trade – is primarily responsible for getting the country into its present dire economic and political mess.  It will be interesting to see their spin-doctors turn and twist as they try and justify their disastrous course over the coming months, and engage in the blame-game vis-à-vis one another that has already covertly started.
(29 October 2010)

What the Irish Government should now do on Lisbon

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.

(Signed)

Anthony Coughlan
Secretary

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