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.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.
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.”
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:
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:
- The EU law in question doesn’t infringe the Charter of Fundamental Rights but,
- The Irish measure implementing the EU law in question does.
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.
6 comments:
With all due respect, I disagree. Part of the problem is that the primacy of EU law (which the Charter becomes) is already there in Article 29.10 of the Irish Constitution (renumbered 29.11 in the constitutional amendment on June 12th). This Article of the Irish Constitution states that nothing in the Irish Constitution can prevent the primacy of EU laws, decisions and legal acts. As a consequence, the Charter will override the Irish Constitution.
This is the main reason I'm voting no. The ECJ will ultimately interpret the Charter, as its job is to interpret EU law - which the Charter becomes. This is about turning the ECJ into a Federal Supreme Court and couching it in the language of human rights. The Charter gives the ECJ jurisdiction over asylum cases e.g. 'the right to asylum/collective expulsions are forbidden', as well as industrial relations 'the right to collective bargaining'. As a consequence we are likely to find challenges to national laws under the Charter to the ECJ on questions like union-recognition and asylum cases. This is unacceptable to me.
I noticed when reading throught the Treaty that the Eighth Amendment of the Irish Constitution, 40.3.3, is mentioned twice, can you explain why and what it means?
Also I saw that rwere special provisions for the UK and Ireland regarding security. What are the reasons and implications for this?
Thanks
Future Taoiseach:
I'm not sure if I'm explaining this very well.
Article 51 of the Charter of Fundamental Rights exists to ensure that the rights that charter contains do not, in of themselves, extend the jurisdiction of the ECJ. The Charter may well appear to assert those rights in a very direct way but that doesn't change anything.
In so far as the ECJ has or is going to have jurisdiction over asylum cases the reason for this lies elsewhere in the treaties. What is affected by the Charter are EU laws which, among other things, affect the rights to asylum and collective bargaining. What is not affected by the Charter are wholly national laws concerning the same things.
Btw: Why you have any problem with these rights is beyond me, but frankly I'm just not going to ask.
Ellen:
The references in the treaties to Article 40.3.3° of the Irish Constitution relate to a protocol we had inserted into the Maastricht Treaty to ensure EU law wouldn't interfere with Ireland's Constitutional position on abortion. The Lisbon Treaty makes some minor drafting changes to this protocol and it's published in the (as amended by Lisbon) consolidated treaties.
By security I assume you're referring to Ireland's opt-out of the "Area of Freedom, Security and Justice". Most of us know this as the Schengen Area, although more accurately it refers to a bundle of security measures which are see as being a necessary to mitigate the negative consequences of abolishing border controls between EU member states, such as the possibility of organised crime benefiting from open borders. Ireland isn't part of the Schengen Area and, along with Britain, negotiated an flexible opt-out from the area's rules which is contained in a protocol attached the Amsterdam Treaty. Under this protocol, we can decide to opt-in or out of proposed EU laws on a case per case basis. The is subject by a technical amendment relating to what happens if other member states excluding Britain and Ireland (or both) wish to amend laws which either Britain and Ireland are bound by, having opted-into them. (I said it was technical.)
The changes have virtually no implications whatsoever as they are both protocols which already exist and will be subject only to minor alterations.
Under the section
Horizontal Amendments at s.3 it states:
(a) the last paragraph of their respective preambles, referring to the Treaty or Treaties to which the Protocol in
question is annexed, shall be replaced by ‘HAVE AGREED UPON the following provisions, which shall be annexed
to the Treaty on European Union and to the Treaty on the Functioning of the European Union’. This
subparagraph shall apply neither to the Protocol on economic and social cohesion nor to the Protocol on the
system of public broadcasting in the Member States.
The Protocol on the Statute of the Court of Justice of the European Union, the Protocol on the location of the
seats of the institutions and of certain bodies, offices, agencies and departments of the European Union, the
Protocol on Article 40.3.3 of the Constitution of Ireland and the Protocol on the privileges and immunities of the
European Union shall also be annexed to the Treaty establishing the European Atomic Energy Community;
Also Under a different section the Treaty Says:
32) The Protocol annexed to the Treaty on European Union and to the Treaties establishing the European Communities
shall be amended as follows:
(a) the Protocol shall be entitled ‘Protocol on Article 40.3.3 of the Constitution of Ireland’;
(b) the words ‘Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities’
shall be replaced by ‘Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy
Community’.
I would like a full explanation of these clauses and positive confirmation that the protection of the unborn child will remain intact and cannot ever be altered without a referendum given to the Irish people.
Re the security issues, other countries opted out of the Schengen aquis. Why refer specifcally to Ireland and the UK, as if they were somehow one entity re security?
Thanks.
Hi Ellen,
As far as abortion is concerned:
The first set of changes reflect the renaming of the "Treaty establishing the European Community" to the "Treaty on the Functioning of the European Union". When the protocol refers to "the treaties", it is simply shorthand for the "Treaty on European Union" and the renamed "Treaty on the Functioning of the European Union". Both the protocols sole article and it's preamble are amended in light of this.
The protocol is going to be annexed to the "Treaty on European Treaty establishing the European Atomic Energy Community" and is amended to include that treaty as one of the treaties covered by that articles exception. I have no idea why they're doing this. I can't imagine it could possibly affect anything.
The protocol also gives the protocol a name: "PROTOCOL (No 35) ON ARTICLE 40.3.3 OF THE CONSTITUTION OF IRELAND". It was previously nameless protocol no. 7.
Many people in the no camp believe that the the Charter of Fundamental Rights could introduce a legal right to abortion in Ireland. If the absurdly improbable event that the European Court of Justice did discover such a legal right, it would not apply in Ireland owing to the above protocol.
The Lisbon Treaty will not introduce abortion into Ireland. I can't be anymore emphatic than that.
And on the security question:
Actually Ireland and Britain are the only member states outside the Schengen Area. Not all member states have implemented it yet but that is a different matter. Denmark is a part of the Area but opts-out of some of its security provisions. It's opt-out is of a rather different nature to ours and is dealt with in a different protocol.
Ireland's only reason for not being part of the Schengen area is that since Britain didn't (and doesn't) want to join, joining wouldn't have meant leaving the Common Travel Area and erecting a rather long and unsightly fence between the Republic and Northern Ireland.
In order to maintain the Common Travel Area (which is absolutely nothing to do with the EU) we need to retain the same latitude that Britain retains in border controls and in immigration and asylum policy. We are therefore included in the same protocol.
The Lisbon Treaty will not change the substance of these arrangements.
Thank you for taking the time to answer my queries.
However I remain totally unconvinced. Especially when you say regarding the sections mentioning s.40.3.3;
"I have no idea why they're doing this. I can't imagine it could possibly affect anything."
Regarding the abortion issue.
In my experience its very rare for someone to do something for no reason. Especially insert a clause into a very important treaty for no apparent reason.
I must conclude that there is a reason, and seeing as it affects the pro life clause in the Irish Constitution, I cannot be assured that the protection we now have for the Unborn Child is secure under the Lisbon Treaty. And this matters a lot to me as a Catholic mother.
I am therefor a NO vote.
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