Open Letter to the Referendum Commission

Below for your information is a copy of the  letter that was delivered to Mr Justice Frank Clarke, Chairman of the Referendum Commission, from Anthony Coughlan last Thursday, with the most relevant passages highlighted in bold …

 

 

Sunday 27 September 2009

_______

 

TO:

MrJustice Frank Clarke

Chairman,

The Referendum Commission

18 Lower Leeson St.

Dublin 2

 

FROM:

Anthony Coughlan

The National Platform EU Research and Information Centre

24 Crawford Avenue

Dublin 9

Tel.:  01-8305792

 

Thursday 24 September 2009

 

Dear Mr Justice Clarke

May I enclose for your information a copy of the new edition of the Lisbon Treaty: The Readable Version, the first edition of which I sent you and your Referendum Commission colleagues some time ago. I also enclose a document which describes the main changes the Lisbon Treaty would make.

 

May I take the opportunity  of saying that the current Lisbon referendum, as I presume you have noted,  has been characterized by monstrous illegality on the part of several key parties, as follows:-

1. The intervention of the European Commission, which is unlawful under European law, as the Commission has no function in relation to the ratification of new Treaties,  something that is exclusively a matter for the Member States under their own constitutional procedures;

 

2. The part-funding of the posters and press advertisements  of  most of Ireland’s Yes-side political parties by their sister parties in the European Parliament, even though it is illegal under Irish law to receive donations from sources outside the country in a referendum and when, under EU law, money provided by the European Parliament to cross-national political parties is supposed to be confined to informational-type  material and to avoid direct partisan advocacy. I read that the Green Party has refused such funding from its sister party in the European Parliament on the ground that it is advised that this is illegal under European law   (Later comment on this latter point inserted  by A.Coughlan:

Presumably this scrupulousness is because  Green Party Local Government Minister

John Gormley, as Minister responsible for running the referendum, cannot afford to

have the political party he belongs to flout the law!)

 

3. The Government’s unlawful use of public funds in circulating to voters a postcard with details of the so-called “assurances” from the European Council,  followed by a brochure some time later containing a tendentious summary of the provisions of the Lisbon Treaty – both steps being in breach of the Supreme Court’s 1995 judgement in McKenna that it is unconstitutional of the Government to use public money to seek to procure a particular result in a referendum;

 

4. The failure of your own Referendum Commission to carry out its statutory function under the 1998 and 2001 Referendum Acts of preparing for citizens a statement or statements “containing a general explanation of the subject matter of the proposal (viz. the proposal to amend the Constitution)  and of the text thereof in the relevant Bill”, namely the 28th Amendment of the Constitution Bill 2009.

 

May I make some points to you and your Referendum Commission colleagues regarding this.

 

The Lisbon Treaty-Your Guide which you have circulated to voters makes no attempt to inform them about the proposed Constitutional Amendment, despite that being your prime statutory duty and that of your Referendum Commission colleagues under the Referendum Acts.

The leaflet and other material which you have made available do not tell citizen-voters  that the new first sentence of the proposed Amendment we shall be voting on  provides that the State

“affirms its commitment to the European Union” which would be established by the Lisbon Treaty – a sentence, incidentally,  that was not in the Constitutional Amendment in last year’s referendum – and  you give voters no idea that this is the case or what such a commitment might entail.

 

You do not inform voters that the second and third sentences of the proposed Amendment make clear that ratifying the Lisbon Treaty would abolish the European Community which Ireland joined in 1973 and  would establish in its place a new European Union on the basis of the Lisbon Treaty which would be constitutionally very different from the European Union that we are currently members of, or what that difference might be.

Nowhere in the Referendum Commission’s information material that you have sent to voters do you advert to the  fact that the Lisbon Treaty would confer on Irish citizens  an “additional” citizenship of the post-Lisbon European Union,  with associated citizens’ rights and duties vis-à-vis that Union, and what the implications of such a change might be.

 

One would think that there could be be few things more constitutionally important for citizens than being endowed with an additional citizenship. Yet you and your Commission say absolutely nothing about it in the “information” material you have circulated  – in violation of the provisions of the Act which gives you your authority.

 

You say nothing  about how the rights and duties that we would have as real citizens of  the constitutionally  new European Union which the Lisbon Treaty would establish would relate to our rights and duties as Irish citizens in the event of any conflicts arising between the two; or how the “additional” citizenship that Lisbon would endow us with differs from our essentially notional and symbolical EU “citizenship” of today.

 

It is clear that such a dereliction of duty on your part and that of your fellow Commissioners amounts to constitutional delinquency of a high order, as well as being a gross misuse of the ¤4 million of public money that you have been entrusted with. It will be interesting to see how future historians assess your actions.

 

As for yourself personally, instead of doing the job which the Referendum Acts impose on you, you have arrogated to yourself the task of answering questions on the Lisbon Treaty on the radio and in the press,  in which you give your personal opinions and judgements, whereas all statements by the Commission should be collectively agreed by its members, as the Referendum Acts clearly envisage.

 

In no way do the Referendum Acts authorise you to do the “solo runs” on radio and in the press that you have undertaken.  Your predecessor, retired Chief Justice TA Finlay, who was an exemplary chairman of the Referendum Commission between 1998 and 2002, would never have permitted this.

 

Some of the oral statements you have made, moreover, have been either false or misleading. From several l examples I could give, I quote two. A fortnight ago you accepted in response to a question on Morning Ireland that the right of Member State governments to “propose” and decide their National Commissioner would be changed by the Lisbon Treaty  into a right to make “suggestions” only,  effectively for the incoming Commission President to decide –  that key person’s appointment being in the gift of the Big States.

 

You added the rider however that you did not think this change was of much consequence.  You must be aware from previous private correspondence that I had with the Referendum Commission on behalf of my colleagues in our EU Research and Information Centre that many people on the No-side consider this be a Lisbon Treaty amendment of considerable consequence.  One way or another, its consequences are clearly a matter of political judgement which it is not your job as Referendum Commission chairman to make.

 

Last Friday I heard you state on Morning Ireland that the difference between the “additional” citizenship that we would have of  the post-Lisbon European Union and the notional or symbolical “complementary” EU citizenship we are said to have today was “of no great consequence” either, or words to that effect.  Yet the most cursory acquaintance with the constitutional changes which the Lisbon Treaty and the Constitutional Amendment to ratify it would bring about, shows that this is just not true.  Lisbon is the old Treaty Establishing a Constitution for Europe after all which the French and Dutch rejected in 2005, even if it implements that Constitution for Europe indirectly rather than directly.

 

You and your Referendum Commission colleagues still have some time left in which to fulfil your statutory function under the Referendum Acts that set you up. You still have a few days in which to do your duty to the Irish people whom you are profoundly failing at present, as they face their historic decision of next Friday with virtually nothing from you and your Referendum Commission colleagues which might give them “the general explanation of the subject matter” of  the Constitutional Amendment “and of its text”, on which they will be voting, as the Referendum Act requires.

 

On behalf of citizens all over the country who are deeply disquieted by the Referendum Commission’s failure to provide information on how the Lisbon Treaty would affect the Consitution, may I appeal to you to do that duty still and to carry out your statutory function under the Referendum Acts.

 

Yours sincerely

 

Anthony Coughlan

 

Director

President, Foundation for EU Democracy, Brussels

 

 

PS.  I intend to release this letter to the media this weekend and to circulate it widely to Irish opinion-leaders.

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

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 voteThese 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

[18/10/2007] Government should set up the statutory Referendum Commission well in advance of the referendum on the new EU Treaty to ensure citizens are adequately informed

THE GOVERNMENT SHOULD SET UP THE REFERENDUM COMMISSION SOON, WITH TIME AND RESOURCES TO INFORM CITIZENS ABOUT THIS NEW EU TREATY

The Government should set up the statutory Referendum Commission well in advance of the necessary Irish referendum on the Renamed EU Constitutional Treaty, which will be agreed in principle in Portugal today, so that citizens can be properly informed before they vote on it.
The eyes of Europe – maybe even of the world – will be on Ireland when we hold our referendum on this Treaty, for we are likely to be the only one of 27 EU Member States to have a vote on it. The good functioning of the Referendum Commission is vital to Ireland being seen to have a fair and democratic referendum process.
The five-person Referendum Commission is the body provided for in the 1998 Referendum Act with the function of informing citizens what a referendum is about and encouraging maximum turnout of voters.
Calling the Referendum Commission into being should be done months before Ireland’s referendum, and not just a few weeks before as previously, so that the Commission members will have enough time, first of all to inform themselves, and then the Irish voting public, on the implications of this important and complex constitutional Treaty, for this could well be the last referendum that Ireland will have on the EU.
Former Chief Justice T.A. Finlay, who chaired the Referendum Commission for the two Nice Treaty referendums, was critical of the time the Government gave it to do its job in his reports on those referendums. He was implicitly critical also of referendums on complex EU treaties being held simulataneously with other referendums on quite different matters.
The Referendum Commission is more likely to give the objective and impartial facts about this Treaty than the partisan bodies on either side, such as the political parties, the European Movement, the National Platform etc. – important and essential though their role in the referendum is.
The Referendum Commission consists of the Clerks of the Dail and Seanad, the Ombudsman, the Comptroller and Auditor General, and a senior judge who is nominated by the Government as Chairman.
Although the Government amended the Referendum Act to remove from the Referendum Commission the function of informing citizens of the main Yes-side and No-side arguments on particular referendum propositions in order to help get the Nice Treaty ratified, the Commission still retains its functions of telling citizens what particular referendums are about and encouraging maximum voter turnout. But it needs adequate time and resources to carry out these important democratic tasks. It was given ¤3.5 million for this purpose in the 2002 Nice Two referendum, although it could have done with extra time even then. The setting up of the Referendum Commission does not need to wait until the referendum date is decided on. The importance of the upcoming referendum is shown by the following facts about the proposed new EU Treaty: –
What the Renamed EU Constitutional Treaty would do:

1. Giving the EU a Federal State Constitution: The treaty would establish a legally new European Union, quite different from what we call the EU at present, with the constitutional form of a supranational Federal State that would be separate from and superior to its Member States, just as the USA is separate from and superior to California, Texas etc. It would do this in three key legal steps: (a) establishing a new European Union with its own legal personality and distinct corporate existence for the first time; (b) abolishing the distinction between the supranational and intergovernmental “pillars” of the two existing European Treaties, so that all powers of government can be exercised by the new Union, either actually or potentially, through a uniform constitutional structure; and (c) making us all real citizens of this new Union for the first time, rather than just notional or honorary EU “citizens” as at present, for one can only be a citizen of a State.
2. Abolishing the national veto in 68 new areas or matters: the new Treaty would introduce qualified majority voting(QMV) on the EU Council of Ministers for 68 areas or matters for the first time – 48 of these referring to new areas of EU law-making and 20 to a shift from unanimity to majority-voting for existing EU legal bases. That would remove the national veto for these 68 areas or matters. This figure of 68 compares with 46 areas or matters moved to QMV by the 2002 Treaty of Nice, 24 by the 1998 Treaty of Amsterdam, 30 by the 1992 Maastricht Treaty on European Union, 12 by the 1987 Single European Act and 38 by the original 1957 Treaty of Rome and its associated Treaties. Each of these shifts of power from the national to the supranational level entails a shift from the Legislative arm of government to the Executive arm and from elected national Parliaments and citizens to Government Ministers and senior civil servants. They hollow out our democracy further.
3. Giving more voting power to the Big States: The new Treaty would introduce a new voting system on the Council of Ministers, making population size a key criterion, which would particularly advantage big States like Germany and reduce the influence of smaller ones like Ireland.
4. Removing the right to a permanent EU Commissioner: It would remove the right of each Member State to have an EU Commissioner for two out of every three Commission terms, i.e. for five years out of every 15. Big States would lose their right to a permanent Commissioner also, but they have other means of exerting their influence on this body which proposes all EU laws. Having a permanent Commissioner has always been recognised as much more important for smaller States like Ireland.
5. Giving the EU the final power to decide our rights: The new Treaty would give the EU the final power to decide our human and civil rights in all areas of EU law, including Member States when implementing EU law, which now constitutes the greater part of our laws each year. This would make the EU Court of Justice rather than the Irish Supreme Court, or the Court of Human Rights in Strasbourg, the final decider of our rights in many areas. The EU Court of Justice would be more remote, slower to work and more expensive for citizens to get to as they seek to establish their rights.
6. A self-amending Treaty: The new Treaty would contain a mechanism enabling qualified majority voting to be sustituted for unanimity in eight policy areas by decision of EU governments, without need for new treaties or referendums.

(Signed)

Anthony Coughlan

Secretary

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