Vote!

The campaign is over. Now the people get to decide.  Whatever way you vote, vote! Some people, really did die for that.

10 Reasons to Vote Yes

In no particular order:

1. Better Protection for Our Rights
Rather than replacing the Irish Constitution, the Charter of Fundamental Rights will protect our rights at a European level. The codification of fundamental rights at a European level will provide better protection than the current rather nebulous system of unwritten fundamental principles of EU law. It will also will be easier to explain, and more immediate, to the citizen.

2. More Consultation with National Parliaments
Lisbon will improve the consultation process between the EU’s institutions and national parliaments. A wider range of draft legislation will be forwarded to national parliaments for their scrutiny. They will also be sent a copy of the (legislative) agenda of the Council of Ministers and a copy of the resulting minutes afterwards. National parliaments will be notified of any proposals to amend the treaties and any applications to join the EU.

3. A More Transparent Council of Ministers
You rarely read criticism of the European Union without reading somewhere that the Council of Ministers legislate in secret. If Lisbon passes they will be obliged to meet in public when legislating.

4. A More Co-ordinated Foreign Policy
Most if not all of the people who complain that Lisbon will introduce a EU Foreign Minister, probably couldn’t name either of the EU’s two current foreign policy chiefs: Benita Ferrero-Waldner and Javier Solana. Rather than causing us to lose the ability to decide upon our own foreign policy, the new “High Representative of the Union for Foreign Affairs” will have, and have no more than, the powers of these two offices. But he or she will gain a higher profile and allow for more consistency and co-ordination of EU foreign policy.

5. A More Powerful European Parliament
The European Parliament will gain sweeping new powers to over see the adoption of legislation, including the ability to veto legislation. EU legislation will never have been more open to scrutiny.

6. More oversight and scrutiny in Justice and Home Affairs
Currently most the EU powers in justice and home affairs outside the scrutiny of the European Parliament and of the European Court of Justice. In Lisbon the European Parliament will gain co-equal legislating powers with the Council of Ministers and the European Court of Justice will be able to strike down EU laws which conflict with the Charter of fundamental.

Ireland has a flexible opt-out in this area, but opts-in to most laws in practice. The greater transparency of the legislative process in this area will also shed some light on the decisions behind choosing whether to opt-in or opt-out of proposed laws.

7. To keep open the possibility of Further Reform
For many people the problem with the Lisbon Treaty is that is doesn’t go far enough. It is not uncommon to hear calls for an elected Commission and the right of legislative initiative for the European Parliament. Lisbon doesn’t provide for either of these, but be aware. A no vote will make any further reform of how the EU operates, however minor or insignificant, impossible.

8. A Social Europe
A common theme of many left-wing opponents of the treaty is that the EU is all about neo-liberalism and free-market economics. They clearly haven’t read the Charter of Fundamental Rights. If Lisbon is ratified the EU’s current rules on freedom on movement of services will have to be balanced against the Charter’s rights to work, fair working conditions, collective bargaining, strike and against unfair dismissals.

9. A Simpler Union
Yes the Lisbon Treaty is difficult to read and makes a serious of complicated amendments to the current treaties which govern the EU. But the end product will be a EU with a more straightforward structure and a more readable set of treaties. We will never again have to go through the tortuous process of explaining the ‘pillar system’ and how the European (Economic) Community still exists as a pillar of the EU.

In the post-Lisbon EU, the most important articles of the treaties, such as those on the aims and objectives of the EU and on the institutions, will be contained in the Treaty on European Union. While the articles detailing how those aim and objectives are to be carried out will be contained in the Treaty on the Functioning of the European Union.

10. A More Efficient Union
It is understandable that people to argue that the treaties seem to work fine the way they are. But you only have to look to Poland’s vetoing of the — entirely symbolic — European Day against the death penalty*, to see how much trouble the EU can get into a the moment for the possibility of any the the current twenty-seven member states vetoing proposals. Unfortunately we will only find out how inefficient the EU could become if Lisbon is rejected.

(* this example is given for illustrative purposes only. I have no idea if the voting procedure used would be changed by Lisbon.)

Another look at the figures

Blog in haste, repent at leisure. Here's what I wanted to say yesterday, put in a better

When viewed in terms of percentages of the electorate rather than in terms of valid poll, the normal narrative of a falling yes vote changes. The biggest no vote was for Amsterdam, the only referendum when over 20% of the electorate voted no. The lowest yes vote, other than the first Nice referendum (15.8%), was the Single European Act (30.7%). And while the referendum for joining the EEC did achieve the highest yes vote (40.6%), The second highest was for Maastricht (39.4%).

Based on the historic results, a 45% turnout next Thursday would make it difficult for the no side to win. If the result is a no, on that turnout or higher, it would represent a sea-change in Irish opinion on the EU, with a large number of people who have never voted no in a EU referendum before, doing so.

Needless to say, it's for the people to decide and I, obviously, stand to be corrected.

(I got the figures from here, and changed the percentages to reflect the electorate, rather than valid poll.)

Opinion Polls

I've spent a good chunk of the evening scanning through opinion polls and referendum results to see if I could find any patterns that might predict the result of Thursday's poll. I finally agree with Declan Ganley on something. The opinion polls do have to be taken with a grain of salt! The only (TNSmrbi Irish Times) opinion poll which reflected an actual referendum result. was the last opinion poll during the second Nice Treaty referendum. And this is only true when you eliminate the undecideds. The latter poll predicted a result of 42% - 29%. When you eliminate the undecideds, this becomes 59% - 41%, not that far from the actual result which was 62.9% - 37.1%.

Anyway, the really noticeable result from my short search was the limitation of the no vote to less than six hundred thousand voters. Which leads me to my conclusion: if the turnout reaches forty five percent, the yes vote should win. Otherwise things look a bit dodgy. I’ll have to wait to see if I’m proved right, or wrong, on the day.

The ‘reality gap’

I’ve been back in Dublin for the last few days for a short break. Viewing a referendum campaign from afar is really quite a different experience to being there yourself. The first thing that struck me when I came back was the postering campaign for the yes side was much more impressive than I thought it would be. I not sure referendums are won on posters, but I do remember that the almost complete absence of yes posters at the time of the first Nice vote spelt doom. Of course it remains to be seen if the people putting the posters up are going to vote yes themselves.

Posters aside things clearly aren’t looking too good. If Fine Gael and Labour can’t get their own core supporters on-side, it’s difficult to see how any of the three main parties can convince anyone else.

What depresses me most about a prospective no vote is the ‘reality gap’ between the extravagant claims being made by no campaigners and what the Lisbon Treaty actually says. The oxymoronic European federal super-state being dangled before voters should – given Lisbon’s modest contents – be laughable if it wasn’t going to result in the rejection of the Treaty. But it’s EU referendum time again, and fiction becomes reality. In fact, all of the following are undeniably true:

1. Shane Ross knows more about corporation tax than the Institute of Chartered Accountants of Ireland.

2. Declan Ganley knows more about what’s good for Irish businesses that IBEC, and the Small Firms Association.

3. The Unite trade union is a more representative of the Irish Trade Union movement than ICTU, which represents all Irish trade unions.

4. Fianna Fail, the party that introduced our low rate of corporation tax, is now conspiring with the French and the Germans to get rid of it.

5. The Roman Catholic Bishops want to introduce abortion in Ireland. Otherwise they wouldn’t have said that Lisbon won’t introduce it.

6. Lisbon will damage Irish farming even though both the IFA (Irish Farmers’ Association) and the ICSA (Irish Cattle and Sheep Farmers’ Association) support the treaty.

7. Irish membership of the European Nuclear Energy Community will require us to introduce nuclear power, even though we’ve been a member of this community for 35 years and we have never been required to introduce nuclear power.

When I think of any more, I’ll let you know...

I'll be heading back to Rome today, well before the vote on Thursday, which living abroad, I can't vote in anyway.

A Weak and Defective Charter?

If the right are worried that the EU’s Charter of Fundamental Rights will override the Irish Constitution (it won’t), the left are worried that the charter won’t go far enough. The Campaign Against the European Constitution’s criticism of the Charter is much on this line. They also look at the Charter’s relationship with the European Convention on Human Rights.

This post is a rebuttal of their main points. But before I begin, I’d like to emphasise the pointlessness of voting no to the Lisbon Treaty for things that won’t change, regardless of the result of the referendum. A rejection of the Treaty because it doesn't contain X or Y right, would be a pyrrhic one. Not only will you not achieve those rights, you would probably be further away from getting them than ever.

> “The charter proclaims social rights such as rights to health care and education. Yet it also states that it “does not establish any new power or task for the union”. Thus the status quo in Ireland – such as our two-tiered health care – would not be affected by this charter.”

This is quite true. The inclusion of these rights in the Charter is intended (as I’ve argued before) to ensure that the EU can’t deprive us of them.  They are not included to give the EU the legal duty or power to put them into effect. I don’t think most people would support handing over responsibility over health and education to the EU. I wouldn’t. I don’t even think CAEUS would either, if they truly thought over the consequences. If we want to get rid of our two-tiered health system we’ll have to do it ourselves!

> “[The Charter] is weak and flawed in its own provisions, being a step back from parts of the UN Universal Declaration of Human Rights (particularly Art 23 protecting a person’s right to work) and, for example, the French constitution. It dilutes the fundamental right to work, and in so doing, undermines the case for social security payments when the state fails to provide employment.”

The right to work isn’t mentioned in the treaties at the moment so it’s difficult to see how it could be diluted by Lisbon. Moreover, the Declaration of Human Rights was never intended to be a legal document — that’s why is called a declaration — but was intended to be followed by a binding treaty. This came in the form of two treaties: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 6 of the latter covenant refers to the:

“[R]ight of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

This is hardly as huge step away from the Charter which says:

“Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.”

> “[The Charter] includes no means for ensuring its own implementation or for monitoring the progress of implementation nor procedures to punish breaches of its provisions.”

The Charter is not a conventional human rights treaty like the two covenants mentioned above. It does have a mechanism to ensure compliance by the signatory states, because it is, for the most part, not intended to apply to them. In the areas in which it does apply — EU law and national implementing acts — the decisions of the European Court of Justice are binding.

> “[The Charter] provides no redress or counterbalance to the primacy of competition and the market in the EU treaties.”

Actually, the Charter contains a catalogue of social rights including the right to work, to fair working conditions, to collective bargaining, to strike and against unfair dismissal. Account will have to be taken of these rights when implementing EU policies such as the freedom to provide services.

> “[T]here is no requirement for trade unions to be recognised as in Art 23 of the Universal Declaration of Human Rights, which states that ‘everyone has the right to form and to join trade unions for the protection of his interests.’”

I’ve already pointed out the non-legal nature of the Declaration of Human Rights, but it hardly matters. How the Campaign Against the European Constitution get from the right to join trade unions, to the requirement to recognise trade unions is beyond me. The Declaration doesn’t mention any such requirement, as is evident from CAEUS’s own quotation. Incidentally the last clause of Article 12 of the EU’s Charter, which recognises the right to join trade unions, is based on the very portion of the Universal Declaration that CAEUS quote. Article 12 of the Charter says that:

“Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”

> “Many of [the Charter’s] provisions only apply ‘in accordance with EU and national laws and practices.’ This means it is only to be used in relation to EU law, and discriminatory national laws could remain.”

Why does the proverbial glass always appear to be half empty? Some right may be only protected in accordance with national laws and practice, but if nothing else the Charter has a strong prohibition on discrimination. Article 21 of the Charter bans:

“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”

> “It is possible that the ECJ through its rulings on the charter may undermine the ECHR. The ECHR makes its rulings based on the European Convention on Human Rights — which deals with human rights alone — unlike the EU treaties on which the ECJ makes rulings.”

(For those of you who might be a bit confused: The ECJ or European Court of Justice, is the EU's top court. The ECHR or European Court of Human Rights is not part of the EU. It oversees the European Convention on Human Rights upon which the EU's Charter of Fundamental Rights is largely based.)

Giving the ECJ an explicit human rights jurisdiction, does obviously create a risk that the ECJ would come to overshadow and consequently undermine the European Court of Human Rights. In order to avoid this, the Lisbon Treaty permits, in fact requires, the EU to ratify the European Convention on Human Rights. That court’s decisions will not be legally binding on the EU — no more than they are on Ireland — but the implication of ratification is that the EU, and its courts, will ultimately be expected to follow the ECHR’s human rights decisions.

The other possible cause of overshadowing the ECHR would have been the creation of a European Supreme with the jurisdiction to review the validity of all national laws. The creation of such a court would have essentially made the ECJ and not the ECHR the final venue for human rights cases. Limiting the scope of the EU’s new rights charter to EU law, avoids the creation of such a supreme court and confirms the ECHR as the paramount body for human rights protection in Europe.

Why the Charter won’t re-introduce the Death Penalty

Believe it or not there appears to be quite a lot of people who believe it will.

For this one we have to go back to the beginning.

When the European Convention on Human Rights was being written in 1949 many, if not most, European countries still had the death penalty. Rather than prohibiting it, Article 2 provided safeguards for when it was carried out. Here’s Article 2, quoted in full:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.”

In McCann v. United Kingdom (commonly referred to as the Gibraltar case) the European Court of Human Rights described the second paragraph of Article 2 as follows:

“[P]aragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than ‘absolutely necessary’ for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c).”

Over the years many countries have abolished the death penalty. Frequently as in Ireland’s case by abolishing it in practice and then by legally prohibiting it. In 1983 the Council of Europe approved a protocol to the Convention abolishing the death penalty in peacetime. In would appear that not enough countries would agree, at the time, to abolishing the death penalty in all circumstances. Protocol 6 has now been ratified by every Council of Europe member state except Russia. It’s operative provisions read as follows:

“Article 1 – Abolition of the death penalty
The death penalty shall be abolished. No-one shall be condemned to such penalty or executed.

Article 2 – Death penalty in time of war
A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.”

By 2000 during the convention which drafted the Charter of Fundamental Rights, all of the then fifteen EU member states had ratified the protocol. The Charter is (sometimes) more economical with words that the Convention on Human Rights and simply says that:

“Article 2
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.”

However the Charter also says (Article 52(3)) that its provisions should be interpreted in line with the Convention and so an explanatory memorandum, which accompanies the Charter, refers to the,

“‘negative’ definitions appearing in the [Article 2 of the Convention which] must be regarded as also forming part of the Charter”,

and then goes on to quote the second paragraph of Article 2 of the Convention and Article 2 of the Protocol 6. (I’ve already quoted both.) In doing this, the writers of the memorandum merely mirrored the pre-existing international obligations all EU member states had at that time.

Some two years after the Charter was approved by EU leaders in 2000, the Council of Europe approved Protocol 13 of the Convention which abolished the death penalty in all circumstances. As yet not all EU member states have ratified this protocol, so it is understandable that the memorandum was not changed to quote this new protocol instead of Protocol 6.

The death penalty myth confuses the Convention’s provisions on the death penalty with those on the use of lethal force. The Convention envisaged the quelling of riots and insurrections possible justifications for the use of lethal force, not executions. Protocol 6 of the Convention provided for the abolition the death penalty in peacetime, not its re-introduction during wartime. Rather than re-introducing the death penalty for “war, riots [and] upheaval”, the Charter reflects every EU member states’ current obligations under the European Convention on Human Rights.

Why the Treaty won’t replace the Irish Constitution

One the recurring and pernicious accusations made against the Lisbon Treaty, and before against the European Constitution, has been that, if ratified, it would replace the Irish Constitution. The Irish Constitution, for the most part, describes the relationships between the national institutions that it established (or, in reality, continued). It describes how members of the Oireachtas are to be elected, how the Supreme Court is to be appointed, and what their powers are. If the Lisbon Treaty were truly going to replace the Irish Constitution, it would have to cover these topics. It doesn’t. The European Union treaties, Lisbon or otherwise, govern the relationship between EU institutions and what powers each has. The Irish Constitution gives no more indication of how the President of the European Commission gets into office than the EU treaties give of how the Taoiseach gets into office. It is a simple point: in order for one legal document to implicitly repeal another it must deal with the same subject matter.

The one commonality that the Irish Constitution and the EU treaties would have in common, if Lisbon is ratified, is in the area of fundamental rights. Yet, even the degree to which real conflict could be encountered here is limited if not non-existent. The reason for this can be seen in the Charter itself. Article 51 of which reads as follows:

“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.”

The inclusion of the Charter in the treaties, will not allow the European Court of Justice to make rulings of general application. Any rulings they might make will only apply within the scope of EU law. The ECJ will not be able to invalidate national acts of parliament which are unrelated to the European Union. In order to do either of these things, the Charter would have to “extend the field of application of Union law” or increase the EU’s powers. The Charter itself explicitly states that it does neither of these things.

Moreover, protecting the rights in the Charter could not be the principal purpose of EU legislation — the Charter would have to create new powers or tasks for the EU in order to do this — but both the EU and its member states would have to respect the Charter when passing and implementing EU legislation. In practice this would mean that the rights contained in the Charter, could not be used as a sword to attack national measures, but rather as a shield to defend actions or national laws which might otherwise be contrary to EU law. (It could, of course, be used as a sword to attack EU legislation.)

The Charter’s and the Irish Constitution’s rights’ provisions would operate within their respective spheres. EU laws could be challenged before the EU’s courts, Irish laws before Irish courts. The only crossover is when Irish laws implement European ones, a point which in practice means much less than you might think. In order to arrive at the point of questioning the validity of an Irish implementing measure, the European Court of Justice would first have to decide that:

1. The EU law in question doesn’t infringe the Charter of Fundamental Rights but,
   
2. The Irish measure implementing the EU law in question does.

Since most implementing measures are, more or less, a slightly altered version of the law they are implementing, it’s not difficult to see the whole question as a matter of splitting-hairs. In practice, since the European laws will be interpreted in accordance with the Charter, Irish laws which implement those laws will have to be interpreted in accordance with the Charter as well. Hardly revolutionary!

Neither does the fact that the ECJ might be able to invalidate Irish statutes, mean that our Supreme Court loses its ability to do so. The latter has long held the jurisdiction to examine Irish implementing measures to see if a more ‘constitution-friendly’ method could be used. In Greene v. Minister for Agriculture the Supreme Court ruled that:

“Undoubtedly membership of the Communities required Ireland to implement a scheme complying with directive 75/268 but it does not follow that any and every scheme drafted in pursuance of that directive and meeting its purpose is necessarily required by our membership of the Communities.”

Rather than replacing the Irish Constitution, the Charter of Fundamental Rights would mirror its protections at a European level.

What I should have mentioned in my last post...

After reading my last post about the Charter of Fundamental Rights, you're probably asking yourself the following question:

Why shouldn't the Irish Supreme Court be allowed to strike down European Union legislation if it conflicts with the fundamental rights set out in the Irish Constitution?

Here's why.

1. It's not just a question of our Supreme Court. There are twenty-six other member states, most of which have similar courts. Imagine the problem like this.

Suppose we abolished the Supreme Court but continued to let each High Court strike down legislation that they thought was unconstitutional. So far so good, you might think. You'd be wrong! Different judges interpret the law in different ways. Without an appeals mechanism to arbitrate over disagreement, chaos would reign. What was constitutional one day might be unconstitutional the next, or even the same day before a different judge.

For proof of this, just think of the number of majority decisions give by the Supreme Court itself: the X Case, Crotty, Norris, McGee and Re a Ward of Court, are just the ones I can think of, off the top of my head. And this only includes the decisions we allow the Supreme Court judges to give dissenting opinions: for post-1937 statutes, they're prohibited.

This would be how the EU would (not) work if the courts of every member states were allowed overturn EU legislation.

2. Different member states have different kinds of constitutions. French and British judges aren't allowed consider the constitutionality of legislation. The United Kingdom doesn't even have a written constitution. It would be unfair if judges in some countries could strike down European legislation and others couldn't.

3. Some constitutions are easier to amend than others. Member states whose constitutions are easier to amend could opt themselves out — so to speak — of any EU legislation they didn’t like, by amending their constitutions.

4. There would be no way of knowing which European laws applied to which member state. Without the guarantee that other member states have to implement the same legislation that we do, why would anybody ever implement any European legislation?

In my next post I really will deal with the relationship between the Charter and Irish Constitution, and why the former won't replace the latter.

The Charter of Fundamental Rights

This is the first of a series of posts I’ve decided to write about the Charter of Fundamental Rights. The Charter was written some eight years ago but will only come into the force if the Lisbon Treaty is ratified. It was previously included as the second part of the European Constitution. In this post I will deal with the reasons that have led to the Charter’s adoption.

In the late 1960s a German administrative court in Frankfurt ruled that certain regulations of the then European Economic Community were unenforceable as they violated the principle of proportionality enshrined in German Constitution law. This interpretation was disputed and in 1970 the court referred the matter to the European Court of Justice. The latter court responded that:

“The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”. Internationale Handelsgesellschaft.

The decision exposed a problem created by the EEC's fledgling legal system: by transferring powers to the supranational European institutions, national courts had lost their ability to review the validly of legislation, and the European Court of Justice did not have any rights charter against which legislation could be judged. Government ministers could, in theory, pass laws in Brussels that their national constitutions and courts wouldn’t have allowed them to do at home.

In order to allay fears of forfeiting rights' protections, the European Court of Justice, in the same case, declared that “respect for fundamental rights forms an integral part of the general principles of [Community] law”. The Court then invoked the (ostensibly German) principle of proportionality, but ruled that the disputed measures — which related to a system of deposits in the corn market — was proportional and valid.

On receiving the ECJ judgement, the administrative court asked the German Constitution Court what it should do. The latter court accepted the supremacy of EEC law over the German Constitution with a caveat. Since the EEC lacked a “codified catalogue of fundamental rights” (Solange I), the German Constitutional Court would reserve for itself the last word on the enforceability of European rules in Germany.

The Charter of Fundamental Rights of the European Union is intended as that codified catalogue which the EEC lacked. The ECJ has greatly developed its human rights jurisprudence over the years by discovering fundamental principles, but the EU still lacks this written catalogue. A written catalogue would make protection of human rights by the ECJ more visible and give the area more clarity. It would also guarantee that the rights of citizens are as protected at European level as they are at national level.

In my next post I'll deal with the relationship between the Charter and Irish Constitution, and why the former won't replace the latter.

Post Script

Please have a read of: What I should have mentioned in my last post. And leave any comments you might have there. MJ.

The Game is on...

The referendum campaign has officially begun. So much for the Daily Mail saying that the date was going to be the the 29th of May.

Libertas and the Referendum Bill

“Referendum bill makes Irish Constitution completely subject to EU”, Libertas.

When Ireland joined the European Economic Community we needed to amend the constitution. It’s been amended a further four times when the European Community/European Union treaties have been subject to significant changes. The main reason for this is that when EU law conflicts with Irish law (including our constitution), EU law prevails. This is a necessary and essential part of the European Union that simple wouldn’t exist or function otherwise. This supremacy of European Union law guarantees that member states can't just opt-out of those measures which they find inconvenient or benefit from their failure to implement measures that other member states have implemented. Supremacy is our way of knowing that other member states are obliged to enforce the same EU laws that we do. And vica-à-versa.

Back in 1972 the Third Amendment inserted the following sentence into the constitution:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”

This sentence was slightly changed by the Maastricht Treaty referendum to deal with the creation of the European Union and would be subject to similar changes relating to the EU’s structure under Lisbon. If the Lisbon Treaty referendum is passed, the Constitution will read as follows:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of 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 25 thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.”

(Actually this is only the draft referendum bill. The bill is at the time of writing still before Dáil Eireann.)

Libertas presents all this as a completely new innovation which subjects our Constitution to the EU. The Third Amendment was enacted 35 years ago. It hasn't brought the state to an end, rendered the Constitution useless, or amending it pointless. The mere fact that the Dáil are currently debating the Twenty-Eighth Amendment of the Constitution Bill gives quite a clear impression that debate surrounding our Constitution has if nothing else be livelier in the last thirty-five years than before.

Neither was the Supreme court deterred from requiring a referendum to ratify the Single European Act some fifteen years after the Third Amendment, at a point when — we must be supposed to believe — the Irish Constitution had already become “completely subject” to the European Union.

In short, a yes vote in the upcoming referendum won't change, in any way whatsoever, the relationship between Irish and EU law.

The Readable Lisbon Treaty

“They have decided in the Council that it’s not allowed for any institution in the European Union to print a consolidated version [of the treaty] which can be read, before it has been approved in all twenty-seven member states,” Jans-Peter Bonde MEP.

The EU have finally published a consolidated version of the treaties. It took a bit longer that the Institute of European Affairs, but then they did have to publish it in twenty-three languages. Here's the link. It includes equivalence tables showing which articles are new and which old articles have been changed, moved or repealed.

The Memo, the Strom and the Teacup

According to Libertas and the Irish Daily Mail a recent memorandum leaked to the latter shows a conspiracy to deceive the electorate over the Lisbon Treaty. The reality of the memo is a bit difficult to distil from such blatantly biased, scare-mongering coverage but it seems to boil down to the following much more mundane points:

1. The memo states that most people will not read the treaty but instead go along with a politician they trust.

This is really just a statement of (perhaps unfortunate) fact. Most people won’t read the treaty and many will just go along with someone they trust. What’s missing here is that that person could just as easily be from the no side as from the yes side. The spin on this is that the government somehow hope that most people won’t read the treaty and see its supposedly adverse contents. I hope people will read the treaty. They would then see how little there is to fear from it.

2. The government fears what Sarkozy might do during the French presidency of the EU and have scheduled the referendum before it begins.

Who wouldn’t? M. Sarkozy can’t say anything that could change the treaty. He can just obfuscate the debate by mouthing off about defence and taxation. Ireland keeps its vetoes on these subjects, Lisbon or otherwise. The government would be right to be alert to these distractions. If they are, or just prefer to have the referendum in the Summer, is anyone's guess.

3. The government has, allegedly, asked the Commission to “tone down or delay” any announcements “that might be unhelpful”, with particular reference to farmers' concerns over the latest world trade round.

Just another of the typically depressing occurrences during your average EU referendum campaign is the intrusion of politics as usual. You can vote no in opposition to CAP reform, the latest world trade round, privatisation, enlargement, trade liberalisation, protectionism or to save the post office. No one ever has to worry that it won't make even one iota of a difference to any of these issues whether the treaty comes into force or not.

Given the liability of these issues to adversely affect the campaign which has, in reality, little to do with them, it’s not surprising that the commission might want to avoid or delay making announcements that could be misused by opponents of the treaty. Both the government and the commission have denied all of this.

4. The memo apparently gives 29th May as the referendum date.

This is apparently an attempt to wrong foot the no side which seems a little strange given that most of the yes side don’t know the date either. The government are required by law to give at least thirty days notice, so it’s hardly going to be sprung upon us.

If the referendum were going to be on 29th May, it would have to be announced before Ahern leaves office on 6th May. A much more likely sequence is an official announcement of the referendum date after the election of the new Taoiseach and a cabinet reshuffle.

A Super-myth, not a Super-state

Most people probably figure that in 1973 Ireland joined the European Economic Community or “Common Market”. That somewhere along the way this became the European Community and then, with the Maastricht Treaty, it became the European Union. This was pretty much what I thought before I sat in on what was probably my first EU law lecture at uni. In fact, the EU consists of three pillars, one of which is the European (Economic) Community (“Economic” was deleted by Maastricht). Thus it was explained to us that the European Community continues to exist, albeit only on paper.

This so-called pillar structure is unnecessarily complicated and the Lisbon Treaty proposes to abolish it. It would do this by replacing all references to the “European Community” in the treaties with one to the “European Union” and by asserting that: “The Union shall replace and succeed the European Community.” In so doing the EU would get its own legal personality. This is not an unusual feature of international organisations. The United Nations has one, as does the World Trade Organisation, the World Health Organisation and the Universal Postal Union. Perhaps more importantly the European (Economic) Community has had one for the last fifty years. None of these organisations are super-states, (not last time I checked anyway), and there’s no reason to think the EU would become one either.

If you took a bit of a double take over my legal personality - super-state analogy, or wondered why I would mention it at all, don't worry about it too much. I’ve been scratching my head over for whole thing for a while as well. Claims on this topic can reach absurd lengths:

“One of the most dramatic consequences of this change is that the EU will become for the first time a ‘single legal personality’. This means that the EU will be able to act in the international arena in the same way as a state; it will be entitled to a seat at the United Nations”, Sinn Féin.

And even:

”It [the Lisbon Treaty] establishes a European Union with an entire legal personality and independent corporate existence in all Union areas for the first time, so that it can function as a State vis-à-vis other States”, Anthony Coughlan.

Legal personality in international law (essentially treaty making power) goes hand in hand with the powers that any particular body has. The EU can't agree to do anything in a treaty that it couldn't do anyway. A legal personality, whether it technically belongs to the European Community or the European Union, doesn't extend the powers of the EU, it just allows it to use those powers it already has.

A Self-Amending Treaty?

“Article 48 is a devious self-amending clause that allows the European political elite to avoid the necessity for further referenda.  This is profoundly undemocratic and signing this Treaty is like signing a blank cheque,” Declan Ganley, Libertas.

Without reverting to panto too much. Oh no it doesn't. Really, it doesn't! What the Treaty does contain is a way of moving from unanimity in the Council of Ministers to qualified majority voting (more on this below), without requiring national ratification, but this doesn't involve changing the treaty texts, increasing the powers of the European Union, introducing new policy areas, or even fixing spelling errors! The only way to change the treaties is if every member state ratifies any proposed changes in the normal way.

Article 48 of the (would be) Treaty on European Union (that's the amended Maastricht Treaty to you and I) lists four ways by which the EU Treaties could be changed. The first should be familiar. The EU calls an intergovernmental conference (which may on may not be preceded by a Convention along the lines of the one that drafted the now defunct European Constitution) of all the member states, they (eventually) agree on a treaty text and each member state has to go about ratifying it in their own way. An intergovernmental conference is kind of like a papal conclave without the smoke (or reasonably obviously the pope). They take a while to arrange, they're long, tedious for those involved (if not for everybody else) and cost a lot. The EU's leaders (supported by an army of civil servants and diplomats) are closed away into a conference centre somewhere until they reach agreement on a treaty, metaphorical white smoke is produced and everyone smiles for a family photograph. The most recent one drafted the Lisbon Treaty itself.

In order to remedy the drawbacks of inter-governmental conferences, the Lisbon Treaty would create a new procedure for minor changes to the treaties (actually just part of one of them). Under this procedure the intergovernmental conference is replaced by a unanimous decision of the European Council (the EU's leaders). Nothing changes on the national leg of the process however. The decision would still have to be ratified by all member states, in exactly the same way as they do now. The key words here are, the "decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements" (Article 48.6 of the would be Treaty on European Union). Which in Ireland's case could mean having a referendum.

The third way of changing the Treaty allows EU member states to move from unanimous to qualified majority voting. This is, in fact, a far-reaching provision, but it does not involve amending the treaty. Libertas, particularly with their reference to blank cheques, give the impression that the next time the EU has a Maastricht, Amsterdam, Nice or Lisbon, there won't be a referendum in Ireland. This simply isn't the case. This third way of changing the Treaty will not allow the EU to do anything it couldn't do already, and is, in any case, a power subject to the veto of national parliaments. If even one objected, the decision would never take effect.

Right, here goes...

Right, here goes. Going by the name you should probably have guessed by now: I advocate voting yes in the upcoming Lisbon Treaty referendum, and have started this blog for the purpose. Most of the English speaking blogs I have come across which deal with European Union issues seem to range from the Euro-sceptic to Euro-crazy, and I hope, in my own small way, to somehow balance this out a bit.

Anyway more on this stuff later...