What the Irish Government should now do on Lisbon

Submission to the Oireachtas Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre

(N.B. The four numbered headings below correspond to the four points of the Committee’s terms of reference)

1. The challenges facing Ireland following the Lisbon Treaty referendum result:

By voting No to the Lisbon Treaty on 12 June 2008 the majority of Irish voters rejected the proposal that they should change the Irish Constitution to allow the abolition of the present European Union and European Community which were established by the the 1992 Treaty of Maastricht, as amended, and their replacement by a legally new European Union, separate from and superior to its Member States, which would be established by the Lisbon Treaty, whose laws, acts and measures would thereafter have the force of law in the State.
The Irish people thereby rejected the attempt to establish a European  Union which would have the constitutional form of a supranational Federation, of which they would be made real citizens for the first time, just as the peoples of France and the Netherlands rejected a similar proposition when they voted No to the Treaty Establishing a Constitution for Europe in 2005.

Irish referendums are a form of direct legislation by the people

Irish referendums are a form of direct legislation in which the Irish people, who adopted their basic law or Constitution by direct referendum vote in 1937, decide to legislate or not to  amend that Constitution in subsequent referendums thereafter.  Last June’s referendum vote was a clear refusal by the people to assent to the constitutional revolution which had been presented to them for decision by the Government and Oireachtas in the 28th Amendment of the Constitution Bill, 2008.

Article 6 of the Constitution states that it is the right of the Irish people “in final appeal, to decide all questions of national policy.”  The matter at issue in the Lisbon Treaty vote was not just a question of national policy; it proposed to alter the fundamentals of the Constitution itself, as the Constitition of a sovereign State, by turning the Republic of Ireland into a constituent element of a supranational European Federation, a political Union which went far beyond the primarily economic European Community and European Union that Ireland is at present a member of.

The Irish people decided to reject Lisbon by clear majority vote. All Yes-side voters who are democrats should respect that vote and abide by it.   Any attempt to put the same Lisbon Treaty to the Irish people again with a view to reversing last June’s vote would almost certainly be in violation of Article 6 of the Constitution and would be open to consitutional challenge in the Courts.
“Respecting” the voters’ decision means abiding by it, not working to overturn it

Although the Government says that it respects the voters’ decision, which means that it should abide by it, all the signs are that Taoiseach Mr Brian Cowen and his colleagues, from the moment the trend of the ballot papers was evident at the referendum count, have set out to work with other EU Governments to overturn this democratic result in a second Lisbon referendum, just as occurred when voters rejected the Treaty of Nice in June 2001.

If Taoiseach Mr Brian Cowen and his colleagues had really respected the voters’ decision, they would have said to their EU colleagues that Ireland could not and would not ratify the Lisbon Treaty in view of the referendum vote. Further ratifications by other EU States would therefore have been pointless, as the Treaty can come into force only if all 27 signatory States ratify it, and there would have been no point in other Member States going ahead with ratifying the Treaty in the light of such a decision by Ireland.

This is what British Foreign Secretary David Milliband was referring to when he said on the day after the Irish vote that the future of the Lisbon Teaty was in the hands of Irish Taoiseach Brian Cowen.
At lunchtime on the day of the referendum count, while the ballots were still being sorted although their trend was clear, Foreign Minister Micheal Martin stated on RTE that “of course the ratifications by other countries will continue.” He would not have said this without the agreement of the Taoiseach.  That same morning Commission President Barroso spoke privately with the Taoiseach on the phone, after which he said that ratifications by the other EU States would  continue despite the Irish vote. This presumably reflected assurances which the Taoiseach gave him that the No vote last June did not mean that Ireland would not be ratifying Lisbon.

So while the Taoiseach, Foreign Minister Martin and other Government Ministers vehemently protest that they “respect” the people’s vote, they simultaneously refuse to accept the decision of the voters by telling their EU colleagues that Ireland would not therefore be ratifying the Lisbon Treaty. They have thereby encouraged the other EU States  to continue with their ratifications on the assumption that the Irish Government and Oireachtas  would  induce Irish voters to reverse their 12 June vote and ratify the Treaty in a second referendum, as occurred previously with the Nice Treaty.
This is not “respect” by Government Ministers for the decision of the voters. It is rather total disrepect. It amounts in effect to the Irish Government aligning itself with the governments of other EU countries,  and in particular those countries that are most committed to the Lisbon Treaty – Germany and France – and the Brussels Commission, against its own people in an attempt to bring about the constitutional revolution embodied in Lisbon, a revolution which would destroy their people’s national democracy and independence as citizens of a sovereign State.

A dilemma of the Government’s own making

If Taoiseach Brian Cowen and his colleagues find themselves next month to be the government of one of only a handful of EU Member States that have not ratified Lisbon, this will be entirely due to the unwillingness of the Taoiseach and his Government to respect the Irish people’s referendum vote on Lisbon. It will be due to their de facto efforts to  reverse that result in concert with President Sarkozy, Chancellor Merkel, Commission President Barroso and others.  This is truly a constitutionally awesome course for any Irish Government to take.

The suggestion that the other EU Member States are unwilling to open issues of concern in the Lisbon Treaty, or to “re-negotiate” its contents, is a spurious one, for the Treaty cannot come into force without Ireland ratifying it. If Ireland does not ratify, the Treaty falls.    All the issues of the Treaty’s contents  would still remain in play however, to be dealt with in the normal toing-and-froing of EU politics over the years or in further EU treaties at some future date.

The Lisbon Treaty and the EU Constitution which it embodies is a bad treaty for Ireland and for the EU, for the reasons publicly canvassed with voters in last June’s referendum and which were set our in our preliminary submission  to the Oireachtas Sub-Committee of 22 October (see below).

By refusing to ratify the Lisbon Constitution Ireland is also upholding its rejection by the peoples of France and the Netherlands, founder members of the original EEC – for the content of Lisbon is 96% the same as the original constitutional treaty that they voted No to.  By rejecting Lisbon and by standing by that rejection, Ireland is also upholding the existing European Union and European Community founded on the 1992 Maastricht Treaty as amended. It is refusing to allow the Prime Ministers and Presidents of the majority of EU countries to foist on the peoples of Europe a new and profoundly undemocratic European Union, in the constitutional form of a Federation, when opinion polls show that the peoples of most Member States do not want this and would reject it if they were given the opportunity of voting on it.

That this would be the case was admitted by French President Sarkozy when he stated at a meeting of group leaders in the European Parliament last year that “France was just ahead of all the other countries in voting No. It would happen in all Member States if they have a referendum. There is a cleavage between people and governments … A referendum now would bring  Europe into danger. There will be no Treaty if we had a referendum in France, which would again be followed by a referendum in the UK.” (EUobserver, 14 November 2007)

The EU Prime Ministers and Presidents act against their own peoples

That is the reason why the Prime Ministers and Presidents of the EU Member States gave a commitment to one another when they signed the Lisbon Constitution to avoid referendums on it at all costs. It is why the French and Dutch Governments refused to hold referendums on Lisbon even though it was virtually identical with the constitutional treaty their peoples had voted No to in 2005.  It is why British Prime Minister Gordon Brown abandoned his Labour Party’s  commitment, and his predecessor’s promise,  to hold  a referendum on an EU constitution in the UK. It is why the Danish Government is avoiding a referendum in Denmark even though referendums on major EU treaties have traditionally been required there.

A radically altered EU built on such undemocratic foundations would be inherently unstable and unable to endure.  That is why Ireland would be  upholding the best ideals of the European project by resisting the pressures  from the bigger EU States to re-run the Lisbon Treaty referendum with a view to reversing the majority decision of  Irish voters last summer.

By resisting such pressures Ireland would simultaneously be upholding the wishes of the majority of Europe’s peoples for a more democratic, less centralised and more transparent EU, where decisions for some 500 million people would not be taken by tiny numbers of people, in the European Commission, Council of Ministers and Court of Justice, bodies that  are irremoveable as collectivities and whose members are  safeguarded from intervention by the voters.
Ireland would thereby be forcing a return to the principles of the 2001 Laeken Declaration which recognised the democratic deficiencies  of the present EU,  before the process of reform was hijacked by the Euro-federalists who drew up the EU Constitution in an attempt to foist on us a European Union that would be profoundly more undemocratic and  less responsive to voters than the EU we have today.

What the Irish Government should now do on Lisbon

To meet the challenges facing Ireland in the EU following the Lisbon referendum therefore, the Irish Government should do the following:-

a)  Abide by the voters’ decision of last June in reality rather than in  pretence,  and inform the other EU States that Ireland will not be ratifying the Lisbon Treaty in its own interests and those of the EU as a whole;

b) Point out forcefully to its fellow EU governments that the rejection of the EU Constitution and the Federalist EU that it embodies by the peoples of France, the Netherlands and Ireland – and its likely rejection in several other countries if their peoples were allowed a vote on it – shows that Lisbon is a bad treaty for the EU as a whole, and that the EU leaders should therefore begin a process of consultation with their citizens on the kind of Europe their peoples really want, and that they should go back to the principles of the Laeken Declaration as a guide to this;
c) Point out to its EU fellow governments that the British Conservative Party is committed to putting Britain’s ratification of Lisbon “on ice” in the event of that party being elected to office before that Treaty is ratified, holding a UK-wide referendum on it and recommending a No vote to it, and  that it would therefore be prudent of the EU as a whole  to await the outcome of the UK general election, which is due in little over a year, before trying to foist an unwanted Lisbon Constitution on the peoples of the UK.   The Government should point out that such a referendum would also give our fellow-countrymen and women in Northern Ireland an opportunity to express their views on this hugely important treaty;

d)  Recommend to its fellow EU governments that it would be prudent also to await the outcome of the Czech Constitutional Court and Senate proceedings, and the Grauweiler constitutional challenge to Lisbon before the German Constitutional Court, before doing anything further in this matter;

e) If, as seems to be the case, there is now general consensus among the EU Prime Ministers and Presidents  that it is not politically practical,  under either Nice or Lisbon,  to  take away from each Member State  their right to have one of their nationals on the Commission, the  Government should propose that the most effective way of achieving  this while abiding by the provisions of the Nice Treaty, would be to have 26 instead of 27 Commissioners, with a place and voice on the Commission to be given to the High Representative for Foreign and Security Policy, instead of having a formal Commissioner from the country whose national holds this office.

2. Ireland’s future in the EU… Our influence within the European institutions

Ireland should remain a fully committed member of the present European Commmunity and European Union. At the same time the Government should  advocate a genuine democratic reform programme for the EU,  following debate and discussion with its own citizens and with other EU States, especially smaller ones, in the process of consulation suggested in Point (b) above.

Advance a programme of democratic reform of the EU

Such a process of genuine EU democratic reform could include, inter alia: (i) the election of Commissioners from each Member State, with the Commission’s  legislative programme being presented beforehand to National Parliaments each year; (ii) changing the Council of Ministers voting system so that European laws could be adopted only if at least three-quarters of  Member States covering at least half of the EU’s population were in favour; (iii) abandoning the idea of a special code of fundamental rights for EU citizens as distinct from national citizens and requiring the EU institutions to abide instead by the  European Convention of Human Rights; (iv) reducing drastically the burden of EU laws and repatriating appropriate law-making areas from Brussels to the Member States as envisaged in the Laeken Declaration.

Ireland’s influence in the EU institutions would be drastically reduced by the provision of the Lisbon Treaty which would take away from EU Member States the right to “propose” and decide who its national Commissioner was, and replace that by the right to make “suggestions” only for the incoming Commission President to decide.  Ireland’s influence would also be drastically reduced by the Treaty’s proposal to halve Ireland’s voting weight in EU law-making on the Council of Ministers from 2% to 0.8%, while Germany’s voting weight would simultaneously increase from 8% to 17%, France’s from 8% to 13% and Britain’s and Italy’s from 8% each to 12% each.

3. Enhancing the role of the Houses of the Oireachtas in EU affairs:

The flood of EC/EU legislation has these days become so great that two-thirds or more of all legal acts in EU Member States now emanate from Brussels. This means that national Parliamentary Scrutiny Committees can give an average of only a few minutes time, if that, to each European legal act. This means that most legal acts get little or no consideration  or discussion at National Parliament level, not to mind amongst the general public.   Important matters can go through without consideration or debate,  whose adverse social consequences only show themselves later when damage may be done.

This is outrageous from the democratic point of view and gives rise to public hostility and cynicism regarding the whole process of European law-making. The only remedy would seem to be to institute fundamental democratic reforms in the EC/EU which would reduce the  aforesaid flood of European laws.  That in turn would require an EU Reform Treaty that is very different in character from the miscalled “Lisbon Reform Treaty”. The comments on this matter by Dr Roman Herzog, former President of Germany and former President of the German Constitutional Court, are relevant:

” It is true that we are experiencing an ever greater, inappropriate centralisation of powers away from the Member States and towards the EU. The German Ministry of Justice has compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004 with those adopted by the European Union in the same period. Results: 84 percent come from Brussels, with only 16 percent coming originally from Berlin … Against the fundamental principle of the separation of powers, the essential European legislative functions lie with the members of the executive … The figures stated by the German Ministry of Justice make it quite clear. By far the large majority of legislation valid in Germany is adopted by the German Government in the Council of Ministers, and not by the German Parliament … And so the question arises whether Germany can still be referred to unconditionally as a parliamentary democracy at all, because the separation of powers as a fundamental constituting principle of the constitutional order in Germany has been cancelled out for large sections of the legislation applying to this country … The proposed draft Constitution does not contain the possibility of restoring individual competencies to the national level as a centralisation brake. Instead, it counts on the same one-way street as before, heading towards ever greater centralisation … Most people have a fundamentally positive attitude to European integration. But at the same time, they have an ever increasing feeling that something is going wrong, that an untransparent, complex, intricate, mammoth institution has evolved, divorced from the factual problems and national traditions, grabbing ever greater competencies and areas of power; that the democratic control mechanisms are failing: in brief, that it cannot go on like this.”
–    Former German President  Dr Roman Herzog and former president of the German Constitutional Court, article on the EU Constitution, Welt Am Sonntag, 14 January 2007

It is also desirable from the democratic standpoint that there should be national parliamentary input to the EU legislative process before Ministers go to Council of Ministers meetings in Brussels, so that they can be given guidance or even parliamentary policy mandates beforehand, at least on important matters. This would enable national parliamentarians to have some real input into the adoption of government policy-positions on EU matters before they come for decision on the Council of Ministers.  This is allowed for in the Danish EU Parliamentary Scrutiny Committee.  It is desirable in Ireland also, although Government Ministers and senior civil servants would very likely resist it.

4. Improving Irish public understanding of the EU:

Public understanding of the EU and issues relating to it would be significantly advanced if Euro-federalists and advocates of EU political union and fuller European integration generally, did not resort so readily to abuse and misrepresentation of people who wish to defend national democracy and national independence in face of the pressures from EU integration to reduce or abandon these.

One egregious and topical example of the kind of misrepresentation that is so common has been the attempt by supporters of the Lisbon Treaty to make out that the threat of conscription into a future EU army was a key theme in No-side propaganda during last June’s Lisbon referendum.
Mr Tony Brown and Foreign Minister Micheal Martin “spinning” tales about conscription to a post-Lisbon EU army.

The undersigned recalls that the first person to raise this scare was Mr Tony Brown in a letter to the Irish Times some months before the Lisbon referendum. In this letter Mr Brown condemned what he said were likely to be the exaggerations and false-claims of No-side people, as illustrated by their putting around this scare-story about conscription to an EU army in previous EU referendums.  I was actively involved in all of these referendums and have no recollection of this theme being pushed by No-side advocates at any time in the past. I can say with absolute certitude that it was not made an issue in the Lisbon Treaty  referendum by No-side campaigners either.

I was personally in touch with virtually all the No-side groups in the Lisbon referendum and saw most of the items of literature which they produced. None of them sought to make supposed conscription into an EU army an issue, nor do I recollect seeing any slogan or piece of No-side literature which made this particular point.

What did happen was that shortly before the referendum Foreign Minister Micheal Martin made a public statement on TV repeating Mr Tony Brown’s earlier statement about this obviously lurid  allegation being an example of alleged No-side untruths and misleading propaganda.  This immediately gave the statement metaphorical “legs”, as it were.  People who did not know anything about an EU army – which is in fact envisaged in the Lisbon Treaty, titled “a common defence”,  as distinct from “a mutual defence”, which is something the Treaty also envisages –  may have said to themselves: perhaps there is something in this notion of conscription after all if the  Foreign Minister is getting so hot and bothered  about it!

It was undoubtedly primarily Yes-side people who were responsible for this nonsense, not the much-maligned, much-misrepresented and much insulted No-side proponents, whose genuine concerns about the Lisbon Constitution have been so contemptuously dismissed by so many Yes-side spokesmen.  Many Yes-side spokesmen in Ireland have also done their best to create the impression abroad that Irish voters rejected the Lisbon Treaty because of fears about conscription to an EU army, which clearly were not in the treaty.  They have thereby sought  deliberately to misrepresent and denigrate the democratic vote of their fellow-countrymen.

The failure of the Referendum Commission to carry out its statutory duty

When it comes to advancing public understanding of the EU and EU Treaties, the Oireachtas Sub-Committee should also not ignore in its deliberations the failure amounting to  constitutional delinquency of the supposely independent Referendum Commission.

The statutory Referendum Commission was given over ¤5 million of public money to carry out its function under the 1998 Referendum Act of  explaining  to voters the significance of the constitutional amendment they were voting on and its text, yet it significantly failed to  do this,  for otherwise the No vote would almost certainly have been higher.

What the Referendum Commission did do was to summarise and regurgitate much of the contents of the highly tendentious booklet on the so-called “Lisbon Reform Treaty”  which was published by the Department of Foreign Affairs. This booklet purported to be a summary of the main provisions of Lisbon, but it completely failed to explain the significance of the constitutional amendment, why it was being proposed and why the Constitution had to be changed to permit Lisbon to come into force, and what the implications of adopting it would be.  Yet this is what the 1998 Referendum Act required the Referendum Commission to do.
Thus the Commission failed to explain to citizens the first two key sentences of the proposed Constitutional Amendment set out in the 28th Amendment of the Constitution Bill.   This made clear that the new European Union which would be established by the Lisbon Treaty would differ constitutionally in profoundly important ways from the present EU that is founded on the Maastricht Treaty.  The Referendum Commission failed even to mention in its publicity material that Lisbon would abolish the European Communities which Ireland joined in 1973 and which are explicitly mentioned in the Constitution, so that it would leave the Atomic Energy Community (EURATOM) as the sole European community in being.

It failed to inform citizens that Lisbon proposed to take away from Member States the right to decide who their national commissioner would be in the ten years out of every 15 when Lisbon provides that they may have a fellow-national on the Commission.  The Referendum Commission omitted many other key facts about the Treaty and the Constitutional  Amendment in its publicity material.  At the same time its chairman made two interventions in relation to disputed matters in the debate, something which had never been done by previous Commissions, in one of these interventions getting his facts clearly wrong.

The Referendum Commission, conflicts of interest and questionable tendering procedures

The Referendum Commission sought legal advice from solicitor firm A and L Goodbody, although this firm represented some Yes-side interests. It relied on Murray Consultants for printing and public relations, the contact person for whom appeared on the Commission’s press releases  and was a former press director of the Fianna Fail Party.
Although the Referendum Act provides that the Commission may engage such consultants and advisers as it sees fit, the tender for ¤3.5 million of marketing and advertising for the Lisbon campaign  was advertised three weeks before the  Referendum Commission itself was called into being. The request for tender stated that the tenders were to be submitted to the Department of Foreign Affairs, even though the holding of referendums and the establishment of the Referendum Commission is a matter for the Department of the Environment and Local Government. No explanation has been provided for the involvement of the Department of Foreign Affairs and no confirmation has been given that the choice of Murray Comsultants was that of the Referendum Commission itself and not the Department of Foreign Affairs. There are several other aspects of the Referendum Commission’s work during the Lisbon referendum which are disquieting from a democratic point of view. It is to be hoped that these will be thoroughly probed when the Commission makes its statutory report to the Oireachtas, as must be done by mid-December.

Ensuring that the Referendum Commission abides by its terms of reference and does a proper job in explaining the significance of the constitutional amendment to citizens is clearly fundamental to improving public understanding of the EU and its importance for Ireland’s future. Such understanding is never more important than when the people are being invited to change their Constitution to ensure the superiority of EU law or not.

Appended below is our preliminary submission made to the Oireachtas Sub-committee  on Ireland’s Future in the EU on 22 October 2008.

(Signed)

Anthony Coughlan
Secretary

Freagra

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