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...