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.