⁂ The EU, the US founding fathers and the “last word”

ft.com/brusselsblog
by Denis Cooper

There can be few more terrifying sentences in contemporary English than: “The Treaty of Lisbon is not the last word.”

The sentence appears in “Saving the European Union” a new book by Andrew Duff, a British Liberal Democrat who sits in the European Parliament. It is certain to raise the hackles of anti-Lisbon campaigners, who have said all along that the EU can never resist the temptation to keep tinkering with its institutional arrangements, no matter how strong the evidence that European voters are thoroughly turned off by the whole process.

Before I develop this point, let me note that Duff’s short book is an excellent introduction to the Lisbon Treaty and to the challenges facing today’s EU. Friends and foes alike of the EU will benefit from reading it. Duff is one of the European Parliament’s top constitutional affairs experts, and he writes clean, crisp prose.

The Lisbon Treaty’s fate hangs mainly on the outcome of a referendum, expected to take place in October, in Ireland, whose electorate rejected the document in June 2008 by a 53.4 to 46.6 per cent margin.

If the Irish reverse their verdict and Lisbon comes into effect, EU leaders have solemnly promised us that there will be no more institutional tinkering, no more inter-governmental conferences, no more constitutional conventions – in short, no more attempts to ape Alexander Hamilton, Thomas Jefferson, James Madison and the other US founding fathers – for a long time to come. “We’re in tune with the voters,” is the message. “We know they wouldn’t forgive us.”

The institutional reform efforts that are encapsulated in Lisbon began as long ago as 2001 and have been plagued with embarrassing setbacks, so it is understandable that most EU leaders have little appetite at the moment for yet more self-punishment. Still, I have always had a sneaking suspicion that the adoption of Lisbon would in fact serve as a prelude to another bite at the institutional cherry.
Duff’s book strengthens this suspicion. “The founding fathers of the United States admitted from the outset that the Constitution as drafted was not the final word. Far from over-selling the text as the ultimate settlement, as some Europeans have done with Lisbon, the Americans were bold enough to admit that further amendment would be both desirable and necessary.”

Duff continues: “So the Treaty of Lisbon is not the last word. Europe can decide whether it wants to be more united or more divided: it neither can nor will stay as it is. The challenge is to manage this federalisation process with similar skill and boldness to that evinced in their time by Messrs Madison, Hamilton and Jefferson.”

Well, there you have it. Lisbon isn’t the last word. Europe must move on with its “federalisation process”. You can’t say you haven’t been warned.

⁂ Barroso tries bullying the Czechs, as the Lisbon Treaty is not a priority for them

What a load of rubbish Barroso talks. The procedures for ratifying treaties are clear and nobody has any obligation to anyone else if they decdide that other things are more important than ratifying the wretched Lisbon Treaty which the European public doesn’t want.

The world may be falling into financial chaos, his mother may be on fire and little green men are landing on earth, but all Barroso can think of is getting more power into his hands in Brussels by bullying reluctant countries.


Czechs ‘have obligation’ to pass Lisbon Treaty despite government’s collapse
The Telegraph
The Czech Republic has an “obligation” to ratify the European Union’s Lisbon Treaty despite the collapse of its government, the European Commission president has said.
By Bruno Waterfield in Brussels

⁂ De Rossa attacks Czech Premier for his insufficient enthusiasm for Lisbon!

The Phoenix
March 13, 2009
Affairs of the Nation, p.11

“The Czech Prime Minister, Mirek Topolanek, was dealt with in no uncertain terms by Labour’s Europhile Dublin MEP Proinsias De Rossa recently after the Czech leader, whose country assumed presidency of the EU in January, addressed the European Parliament.

“Topolanke explained that he would not be to upset if the Lisbon Treaty was rejected, although he would vote for it and that the EU could function without Lisbon under existing Nice Treaty arrangements. He also warned, with reference to Ireland, that ‘telling member states in advance that they have to ratify the treaty and that they do not have the right to decide whether to approve it or no, is absurd’.

“This seems an eminently reasonable attitude to adopt by a lukewarm supporter of Lisbon but De Rossa was having none of it and he tore into the Czech premier with abandon saying he was ‘appalled by your comment here this morning that Lisbon is worse than Nice … That is not only untrue, it is divisive and it is a breach of trust. You have to seriously consider withdrawing your remarks.’

“Eurosceptic British Tory MEP Daniel Hannan picked up on De Rossa’s remarks and derided the Labour MEP on his blog, hosted on the Telegraph website, pointing out that certain pro-Lisbon politicians could not even stomach allies who were not sufficiently ardent in their support for the treaty. Hannan also pointed out that De Rossa was dismissing his own electorate in Ireland who had rejected his pro-Lisbon position. Worse, Hannan posted a video of De Rossa’s speech on his blog, christening it: ‘De Rossa’s attack on Democracy.’

“A livid De Rossa then wrote to Hannan demanding that he retitle his video, a demand the Tory MEP graciously acceded to, telling his colleague, ‘You’ve always struck me as a decent fellow’, while nevertheless repeating to De Rossa that he had a ‘contemptuous attitude’ towards his own electorate.”

Taoiseach Cowen’s spoofery on Lisbon Two could make Irish media & people laughing stock of Europe

authorThursday 11 December 2008

author by National Platform for EU Research & Information
author address 24 Crawford Avenue Dublin 9
author phone 00-353-1-8305792

Taoiseach Brian Cowen’s hypocrisy in pretending to “respect” the people’s referendum vote on Lisbon is now evident, for not a jot or tittle of Lisbon will be altered when he forces the people to vote on it a second time next year.

Political Declarations or promises regarding future Treaties that are not yet even drafted will not alter a comma of the Lisbon Treaty.

If people vote Yes in Lisbon Two to exactly the same Treaty which they voted No to last June they will be changing the Irish Constitution so as to recognise the supremacy of the law of the new Union which Lisbon would establish over anything contrary, whether in the Irish Constitution or in political Declarations and promises that might be tacked on to Lisbon.

No political Declarations or promises about commitments and even Protocols in future EU Treaties can change Lisbon or the supremacy of the EU Court of Justice in interpreting that Treaty’s provisions. These will have come into force well before any further EU Treaty or Treaties will even be negotiated.

If the Irish media and public opinion allow themselves to be taken in by the kind of presentational trickery Taoiseach Cowen and his Government are now planning, they could be making themselves the laughing stock of Europe.

A promise by the 27 EU Governments that each Member State can keep a Commissioner permanently under Lisbon is valueless in the light of that Treaty’s provision that from 2014 Member States will lose their right to decide who their national commissioner will be.

For under Lisbon (Article 17.7, amended Treaty on European Union) a Government’s present right to decide would be replaced by a right to make “suggestions” only, for the incoming Commission President to decide (See notes below elaborating on this point).

Under the present Nice Treaty arrangements Member States would retain permanently their right to decide who their national Commissioner is – a right which they would lose under Lisbon.

The Nice Treaty requires that the number of Commissioners should be fewer than the number of Member States from 2009, but by an unspecified number to be agreed unanimously.

This requirement of the present Nice-based Treaties can be abided by, and Ireland and the other States can keep a national Commissioner permanently, by the simple expedient of reducing the number of Commissioners from 27 to 26 and permitting whoever holds the job of “High Representative for EU Foreign and Security Policy” – currently Spain’s Javier Solana – to attend Commission meetings instead of being formally titled a Commissioner from that State.

This can and should be done under the Nice Treaty. This would mean that the Commission arrangements would continue virtually unchanged from the present. Ireland would retain a Commissioner permanently except in the unlikely event of an Irish person being given the even more important job of High Representative.

Taoiseach Cowen and his Government have deliberately sought to isolate and put pressure on their own people by failing to say after the Lisbon referendum last June that Ireland would not ratify Lisbon in view of the people’s No vote.

If the Taoiseach had done that, continued ratification by the other EU States would have been pointless, for Lisbon requires ratification by all 27 States before it can come into force for anyone.

Such a stand would have led to the Lisbon Treaty being opened and a chance created for a more democratic rather than less democratic EU through a better Treaty.

The prudent stand now for the Government and for the EU is to wait for the UK general election and the likely advent to office in Britain of a Conservative Government which will be committed to holding a referendum on Lisbon in the UK and recommending a No vote to it, as long as we Irish do not alter our No vote before then.

That would put paid to the attempted isolation of Ireland, which its own Government has connived at.

It would also give our fellow countrymen and women in Northern Ireland a chance to vote on this Treaty-cum-Constitution which would make them real citizens for the first time of an EU that would have the constitutional form of a supranational Federal State run on most undemocratic lines under Franco-German hegemony.

(Signed)

Anthony Coughlan
Secretary


A NOTE ON HOW LISBON WOULD TAKE AWAY IRELAND’S RIGHT TO DECIDE WHO ITS NATIONAL COMMISSIONER WOULD BE:

Under the current Nice Treaty arrangements (Treaty Establishing the European Community, Article 214.2) Member States have the right to “propose” a Commissioner every five years. This is effectively a right to decide, because while the others can ask the Member State in question to give them some other proposal if they do not like the person proposed, if that Member State declines to change its mind, its proposal will prevail, for otherwise it can refuse to accept the proposals of the others.

Article 214.2 TEC reads:

“The Council, acting by a qualified majority and by common accord with the nominee for the President shall adopt the list of other persons whom it intends to appoint as Members of the Commission, drawn up in accordance with the proposals made by each Member State.”

Under Lisbon (amended Treaty on European Union, Article 17.7) Commissioners would be appointed on the basis of “suggestions” from the Member States. The word “proposals” is thus replaced in Lisbon by “suggestions“.

Effectively under Lisbon, if it should come into force, it will be the incoming President of the Commission, interacting with the Member States, who will decide what “suggestions” are acceptable to him or not.

The President of the Commission will be effectively decided first by a special qualified majority vote of the Prime Ministers and Presidents – 20 out of 27 – taking account of who has the majority in the EU Parliament. They will propose their nominee to the European Parliament, who will then “elect” him or her. If the European Parliament does not elect the person nominated as President, the Prime Ministers and Presidents must propose another candidate within a month.

Then when it comes to the individual Commissioners, Lisbon states (Article 17.7 amended TEU) :

“The Council, by common accord with the president-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of suggestions made by Member States, in accordance with the criteria set out in paragraph 3 …”

Paragraph 3 refers to the criteria of “their general competence and European commitment“.

The Commission President, the High Representative for Foreign and Security Policy and the other members of the Commission shall then

“be subject as a body to a vote of consent by the European Parliament”. If this consent is given “the Commission as a whole shall be appointed by the European Council, acting by a qualified majority”

In power-political terms the Big States in the EU can look with equanimity on the proposal that they should lose their national Commissioner for 10 years out of every 15 in the rotating system proposed by Lisbon, because they know that they will have the decisive say in appointing the new Commission President, who in turn will have the key role in deciding who ALL the Commissioners will be, based on mere “suggestions” rather than proposals from the Member States.

It is unlikely that that the incoming Commission President will adopt “suggestions” that are uncongenial or unacceptable to the Big States who will have been crucial in his or her own appointment.

Lisbon would thus endow the incoming Commission President with powers very similar to those of a Prime Minister at national level – the right to decide what “suggestions” from Member States are acceptable to him, so giving him the right to decide his “Commissioners/Ministers“, the right to allocate whatever jobs he likes to the Commissioners and the right to obtain their resignation and replacement at any time.


A NOTE ON THE BIG STATE POWER-GRAB FOR CONTROL OF A POST-LISBON EUROPEAN UNION

This is shown by three specific proposals of the Lisbon Treaty:

a) Appointing the new permanent EU President as a plum job by agreement of the Prime Ministers and Presidents among themselves, without any democratic input from the EU’s peoples. The new President would replace the present rotating six-month EU presidencies and would chair the summit meetings of Prime Ministers and Presidents for a period of 2.5 years, renewable once.

b) Basing EU law-making post-Lisbon on population size instead of the present system of weighted votes. This would double Germany’s relative voting weight in making EU laws from the present 8% to 17%, increase France’s, Britain’s and Italy’s from their present 8% each to 12% each, and halve Ireland’s from 2% to 0.8%.

Lisbon would therefore allow 15 EU States to outvote 12 in making European laws, so long as as the 15 constitute 65% of the total EU population of 500 million or so. France and Germany between them already have one-third of the EU’s population.

c) (i) Removing the right of Member States to decide their own Commissioner and effectively giving that function to the incoming Commission President, who will be a creature of the Big States.

(ii) Reducing the number of Commissioners by one-third from 2014 – a proposal that can be abandoned by unanimous agreement under Lisbon.

First posted online at indymedia.ie

category national | eu | press release

Comment: The Irish Government has betrayed its people

DECLAN GANLEY AND JENS-PETER BONDE
Today , Thursday 11 December 2008 @ 09:13 CET

EUOBSERVER / COMMENT – The French president yesterday told the group leaders of the European parliament that he has made a deal with the Irish government to hold a second referendum in Ireland to ratify the Lisbon treaty first rejected on 12 June by 53 percent of Irish voters.

None of the representatives of the Irish people who voted No to the Lisbon Treaty were consulted by the Irish government before they struck a deal with the French Presidency. The Irish government has simply ignored the result of the referendum and betrayed those people who voted No in the majority.
Government ministers, including the prime minister, have been urging other countries to “isolate” Ireland by ratifying the treaties so the Irish could sweat it out and then change their mind.

And what do they deliver as concessions to the Irish voters? Not one single word to be changed in the treaty that was also rejected by the French and Dutch voters in referendums in 2005 when it went under the name of “Constitution”.

Not one word or legal obligation will be changed. The same content will simply be put in a new envelope, just as Valery Giscard d’Estaing said about the change from the Constitution to the Lisbon Treaty. But this time, not even the headline or the wording will be changed.
It is the same text that was rejected.

It is legally doubtful if it is possible to repeat a binding referendum on the same text in the same parliamentary period.

In the new envelope, there will be a lot of nice words in Declarations. They have not the slightest legal value. They will neither change anything in the treaties nor hinder the court in Luxembourg from deciding directly against whatever the Declarations say.

Then, they will have the promise of a commissioner from each member state. Fine. But the Irish commissioner will be picked by a majority of prime ministers and presidents in the EU. The Irish government can come up with “suggestions”, but other member states decide.

It would indeed be a concession if they were change the treaty and allow every member state to elect its own commissioner, and it would be democratic progress if we could elect our commissioner in direct elections together with the elections to the European Parliament.

The Irish government has simply given in and will not even insist on the right of Ireland to nominate its own commissioner.

Declan Ganley is president of Libertas and Jens-Peter Bonde is president of the EU Democrats and a member of the European Parliament from 1979-2008

Why Lisbon is a bad Treaty for both Ireland and the EU

Preliminary submission to the Oireachtas Sub-Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre:

Why Lisbon is a bad Treaty for both Ireland and the EU

Ireland should remain a fully committed member of the present European Union and European Community that were established by the 1992 Maastricht Treaty on European Union.  It should not support the abolition of the present European Community and Union and their supersession by the proposed new European Union whose Constitution is set out in the 2004 Treaty Establishing a Constitution for Europe and the 2007 Treaty of Lisbon, and of which we would all be made real citizens for the first time.

The latter would be a radically undemocratic EU whose proposed Constitution has already been rejected by the voters of France, the Netherlands and Ireland in referendums.

The challenge facing Ireland is how it can induce the Governments of the other EU countries to respect the referendum votes of the peoples of France, Holland and Ireland itself when they rejected this proposed new and highly undemocratic European Union.

The best way of doing this is for the Irish Government to respect the vote of its own citizens last June, inform the other EU Governments that Ireland cannot ratify the Lisbon Treaty as it stands, and that it intends to await the almost certain arrival to office of a Conservative Government in the UK inside the next 18 months.  According to Shadow Foreign Secretary William Hague, writing in the Irish Times on  26 July 2008,  Britain’s incoming Conservative Government will be committed to putting Britain’s ratification of the Lisbon Treaty “on ice” and will hold a referendum on it in the UK and recommend a No vote to it if that Treaty has not come into force by the time it comes to office.  This will also give our fellow-countrymen in Northern Ireland an opportunity to vote on this important Treaty.

By taking such a stand the Irish Government will be upholding democracy in the EU and preventing it being deeply damaged by the political leaders of the big Member States, in particular France’s President Sarkozy and Germany’s Chancellor Merkel, whose power and voting weight in EU law-making would be markedly increased by the provisions of the Lisbon Treaty.  Ireland would  thereby be upholding the best ideals of the European project.

The principal reasons why the Lisbon Treaty is not in the interests of either the Irish people, of the peoples of the other Member States, or of the EU itself are as follows:-

1. Lisbon would abolish the European Community which we have been members of since 1973 (Art.1 TEU / Treaty on European Union) and would replace the existing EU with a legally new Union in the constitutional form of a supranational EU Federation with its own legal personality distinct from its Member States. Instead of being sovereign States in the international community,  Lisbon would thus reduce Ireland and the other Member States to the constitutional status of provincial states in a Federation, like Virginia inside the Federal USA or Bavaria inside Federal Germany. The laws of this new European Union would thereafter have primacy over national Constitutions and laws (Arts.1 and 47 TEU; Declaration No.17 concerning Primacy).

2. It would make the 500 million people of the EU into real citizens of this new EU Federation, owing their prime obedience to its laws and loyalty to its authority over and above their citizens’ duty to their national Constitution and laws in any case of conflict between the two. One can only be a citizen of a State and all States must have citizens. Instead of  EU citizenship being “complementary” to national citizenship and essentially notional and symbolical (Art.17 TEC / Treaty Establishing the European Community).   Lisbon would make EU citizenship “additional to” national citizenship (Art.9 TEU). This would give us all a real dual citizenship, not of two different States but of the Federal and provincial levels of one State, as in the US or German federations. One example of this change: if Lisbon came into force MEPs, who at present are “representatives of the peoples of the States brought together in the Community” (Art.189 TEC), would become “representatives of the Union’s citizens“, just as in any State (Art.14.2 TEU).  Ireland’s statutory Referendum Commission failed to make any mention of these facts in the material it sent to citizens for the June 2008 referendum,despite being given €5 million to explain the constitutional amendment to voters.

3.  It would be a power-grab by the Big States, with EU law-making in the Council of Ministers based henceforth primarily on population size as in any unified State, thus greatly increasing the power of the Big EU Members with large populations and reducing the voting weight of Ireland and the other smaller states. Germany’s voting weight in making EU laws would go from 8% to 17% as a result, while Ireland’s would halve to 0.8% (Art.16 TEU).

4.  It would remove the right of Ireland and the other EU Member States  to decide who their national Commissioner would be in the ten years out of every 15 when Member States would have a Commissioner under Lisbon.  It would do this by replacing each Member State’s present right to “propose” a Commissioner – and to insist if need be on its proposal being accepted as a condition for it accepting the proposals of others (Art.214 TEC) – by the right to make “suggestions” only, and leave it for the incoming Commission President to decide (Art.17.7 TEU). Who the Commission President is would be decided mainly by the votes of the Big States. Again the Referendum Commission glossed over this significant Lisbon amendment in its information material to Irish voters by using the same word – “nominate” –  for the pre-Lisbon and post-Lisbon situations as if there was no difference!

5. It  would give the EU Court the power to decide our fundamental rights as EU citizens, rights which the EU and its Member States would then have to enforce over and above our rights as Irish citizens in any case of conflict between the two (Art.6 TEU and the EU Charter of Fundamental Rights).

6.  It would weaken National Parliaments further by abolishing 68 national vetoes and would give the EU power to make European laws binding on the nationals of the Member States  in some 30 new policy areas, such as crime, justice and policing, public services, immigration, energy, transport, tourism, sport, culture, public health and the EU budget.

7. It would give the EU the power to raise its own taxes and impose any tax, including income tax or sales tax, by consensus amongst the governments, without the need for further new treaties or referendums (Art.311 TFEU /Treaty on the Functioning of the EU).

8. It would empower the EU Court of Justice to order the harmonization of indirect taxes amongst the EU countries if the Court should decide that failure to do this constituted a “distortion of competition” (Art.113 TFEU).

9.  It would militarize the EU further, requiring Member States “progressively to  improve their military capablities” (Art.42.3 TEU ), and it contains what Commission President Barroso termed “a mutual defence clause”, requiring Member States to go to the assistance of other Member States in the event of war (Art.42.7 TEU).

10.  It would subvert workers’ rights by copperfastening the recent Laval, Rüffert and Luxembourg judgements of the EU Court of Justice, which were delivered after Lisbon was signed and which subordinate employee wage bargaining to the EU’s internal market rules. These judgements can be reversed only by a  special new Treaty Protocol.

11.  It would be a self-amending Treaty which permits EU law-making to be shifted from unanimity to majority voting without the need of new Treaties or referendums (Art.48 TEU).

12.  It would reintroduce the death penalty “in time of war or of imminent threat of war” for the European Army that it envisages by providing for the post-Lisbon EU acceding as a corporate entity, separate from its Member States, to Protocol 6 of the European Convention on Human Rights, which permits use of the death penalty on these occasions, instead of to Protocol 13, which bans the death penalty in all circumstances and to which most EU Member States have acceded (Explanation attached to Art.2 of the EU Charter of Fundamental Rights). This item is in a footnote of a footnote in the Lisbon Treaty and has caused much controversy in Germany and Austria, although most people in Ireland have never heard of it.  Again the Referendum Commission made no mention of this proposal in its information material to Irish voters for the 2008 Lisbon referendum, although the matter was drawn to the Commission’s attention.
13. It would make National Parliaments formally subordinate to the post-Lisbon EU.  Far from increasing the power of National Parliaments, as pro-Lisbon spokesmen untruthfully assert, Lisbon underlines their implicitly subordinate role in the institutional structure of the post-Lisbon Union by providing that “National Parliaments contribute to the good functioning of the Union” by various means that are set out in Article 12 TEU.  Under Lisbon National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third of National Parliaments object, the Commission can then decide to continue with its legislation unamended, with its decision confirmed by the normal Council of Ministers QMV procedures (Protocol on Subsidiarity and Proportionality, Art.7.2).  In no sense can this be said to give “more control” to National Parliaments, as pro-Lisbon spokesmen continually assert in blatant contradiction of the truth.

14.  It would create a political government of the new Union by turning the regular summit meetings of EU Prime Ministers and Presidents, known as the European Council, into a formal legal instititution of the Union for the first time (Art.13 TEU). This would mean that  this body’s acts and failures to act would become subject to legal review by the EU Court of Justice (Arts 263-5 TFEU). This would also mean that individual Prime Ministers and Presidents would be constitutionally obliged henceforth to represent the Union to their Member States as well as their Member States to the Union, with the former function having  legal priority in any case of conflict between the two functions. The Referendum Commission ignored this important change in its information material too.

A Note on how all EU Member States may continue be represented on the EU Commission under the Nice Treaty provisions

The Lisbon Treaty’s provision that Member States would lose their present right to decide who their national Commissioner would be (Art.17.7 TEU) makes the retention of one Commissioner per Member State instead of their reduction by one-third from 2014 (Art.17.5 TEU) of little value anyway, should this be agreed among the EU Governments as expected.

A political declaration by the EU Prime Ministers and Presidents that if the Lisbon Treaty should be ratified by all Member State including Ireland,  the European Council will exercise its discretion in 2014 to maintain one Commissioner for every Member State might have some political but no legal value, for it would not be part of the Treaty.  It could only be relied on until such time as no one was paying attention anymore post-Lisbon, when the European Council could use its discretion to cut the number of Commissioners or – perhaps more likely – introduce permanent senior and junior ones.

The Nice Treaty’s Protocol on EU Enlargement (Art.4.2) requires the number of EU Commissioners to be less than the number of Member States from 2009, although by an unspecified number to be agreed unanimously.
If the  European Council is now prepared to accept that the number of Commissioners should continue to be equal or approximately equal to the number of Member States, the most practical way of doing this under the provisions of the Nice Treaty is for the Council to agree to reduce the number of Commissioners  from 27 to 26, with the person who holds the position of High Representative for Foreign and Security Policy sitting in on  Commission meetings in a non-voting capacity instead of having a Commissioner from that country.  This would mean that the Commission would remain practically unchanged from the present, with all  27 Member States being represented on it, while the provisions of the Nice Treaty were simultaneously abided by.

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
Lean

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