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Lisbon Essay (30): The least impact upon the Irish Constitution of any Treaty ever voted on…

Thu 1 October 2009, 8:21pm

Ciarán Toland is a barrister (so we’ve given him a bit more space to make his case). In this, essay he lays out why he thinks the Lisbon Treaty has taken on a significance in Irish law that barely reflects insignificance in real terms. It lies primarily in the proposal to give the EU (previously three pillar multiple personality) and single legal personality of its own. Much else, he concludes is moving the furniture around: “…the Lisbon Treaty has the least impact upon the Irish Constitution of any Treaty the People have ever decided upon. Whilst the Constitution of Ireland will be amended, the sovereignty of the Irish people expressed in that Constitution will remain undiminished.”
By Ciarán Toland

The fact of having to vote in a constitutional referendum suggests that the subject-matter has the significance of the Constitution which is being amended. We assume – reasonably enough – that when the Irish people are consulted, there must be a significant impact on the Irish Constitution. This assumption is misplaced, especially in respect of Lisbon.

Unfortunately, from this wrong assumption stem 2 unwarranted fears: first, an apprehension that every Treaty involves a substantial transfer of power away from the Irish people; and, second, a belief that other constitutional issues – such as abortion – are somehow in the mix. The undeserved importance we subconsciously attribute to questions put to the people distorts public debate.

That, however, is counterintuitive. After all, we’re voting on it, not the Oireachtas (who would ratify it, over the objections of only a handful of Deputies and Senators). So, just why are we, the Irish people, having to vote tomorrow?

In Crotty v An Taoiseach in 1986. The Supreme Court decided that a constitutional referendum is required where the proposed changes were outside the essential scope and objectives of what the High Court had described as a “living, dynamic” Community.

The Supreme Court therefore found that the creation of a new field of decision-making in foreign policy was outside the scope and principles of the original EEC. However, the Single European Act’s enumeration of specific objects, namely to create a single market, was within the scope and principles of the Community established to create a common market.

The Lisbon Treaty is a Treaty devoted to internal decision-making. From the Irish perspective, it is entirely constitutional to tinker with the method of appointment of certain offices such as the President of the Council or the merger of the positions of Union High Representative for Foreign Affairs with the Commission’s Vice-President for External Relations. It presents no constitutional problem to make the European Council (the meetings of heads of government) a European Union institution, nor to throw open the doors of the Council of Ministers when legislating.

Likewise, the introduction of consultation with the national parliaments is in no way outside the scope and principles of the current Treaties – and, as the German Constitutional Court has recently indicated, is beneficial to EU and national democracy. All these could have been handled by the Oireachtas.

Nor are the People voting because of the Charter of Fundamental Rights. As the Charter expressly states, with the backing of the French Constitutional Court, the Charter applies only to the application of Union law. It does not extend the scope of Union law. And, given that fundamental rights, and in particular many of those enumerated by the Charter, have been recognised by the Court as having the status of Treaty law for nearly 40 years, and have been expressly referred to in the Treaties since Maastricht, the Charter is not outside the scope and principles of the existing Treaties.

Although the Supreme Court in Crotty reserved its position on future moves from unanimity to QMV, the Supreme Court made clear that movement of areas to QMV where envisaged by the founding Treaties did not fall outside the scope and principles of the EEC. Therefore, whilst there remains unfortunate legal ambiguity on this point, it is at least arguable that a referendum is triggered neither by Lisbon’s introduction of a double-majority voting system, nor by the movement of many areas from unanimity to the ordinary legislative method (double-majority within the Council of Ministers and co-decision with the Parliament).

So, is it because Lisbon deepens European integration? Does it transfer competences away from Ireland to the EU? Despite certain claims, the Union already has competence in energy and climate change. Other areas (such as space) are areas in which the Union will be able to act, but not to the exclusion of the Member States. These do not represent the creation of a competence outside the constitutional licence given under the existing Treaties.

So what is in the Lisbon Treaty that requires the Irish people to make the decision? What’s the big deal?

As obscure as it sounds, it is a matter of legal structure. In 1973, Ireland joined the European Economic Community (EEC), a common market. In 1993, the EEC was renamed the European Community, by then a single market. Also in 1993, an umbrella international organisation (but not a legal entity) named the European Union was created, under which sat the European Community, and 2 new centres of European law and policy – on foreign and defence policy (the “Second Pillar”) and what is today police and judicial co-operation in criminal matters (the “Third Pillar”).

The important differences between the European Community and the European Union can be simplified as follows: the EU makes decisions by unanimity in the Council without full oversight by the European Court of Justice, but cannot sign Treaties; the EC makes decisions by qualified majority in the Council on a proposal by the Commission with co-decision of the European Parliament and with full oversight by the European Court of Justice, and can sign Treaties.

The Lisbon Treaty proposes to abandon this complex system. It proposes that the EC and the 2 other pillars will be absorbed into a new EU endowed with legal personality. It is this question of legal structure which necessitates the Irish people vote, as is evident from the text of the constitutional amendment.

And it is on this question that Declan Ganley and some on the left are focussed, saying that Lisbon gives the European Union the characteristics of a State. However, on 30 June this year, the German Constitutional Court addressed that very question. It held that “even as an association with its own legal personality, the European Union remains the creation of sovereign democratic states.”

It further found that the post-Lisbon European Union is not a federal state but remains an association of sovereign states to which the principle of conferral of powers by sovereign Member States applies, that the Lisbon Treaty did not permit even development towards Union statehood, and that the democratic right of citizens to elect those who make their decisions is not infringed by the Lisbon Treaty.

It is apparent – from both an Irish legal analysis, and after consideration of decisions of the French, German and Czech Constitutional Courts – that the Lisbon Treaty has the least impact upon the Irish Constitution of any Treaty the People have ever decided upon. Whilst the Constitution of Ireland will be amended, the sovereignty of the Irish people expressed in that Constitution will remain undiminished.

Moreover, it must be concluded that with the sole exception of the legal structural question of the merger of the EC and the EU (on which little turns), and with the possible exception of some moves of Council decision-making from unanimity to QMV (to which there has been little objection in the second referendum,), every element of Lisbon flows directly from the project to which we as a People have previously agreed.

Advocates of a No vote, particularly those (such as Sinn Féin and Libertas) who support the current European Union and who agree we have benefitted in our membership of it, must therefore explain why they support resiling from the living, dynamic partnership with which the Irish People have on 6 occasions contracted.

Ciarán Toland is a barrister specialising in European Union law. You can read the rest of the Lisbon Essays here.

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Comments (4)

  1. My apologies for a misleading typo. The final three words should, of course, be “5 occasions contracted”: accession; the Single European Act; Maastricht; Amsterdam and Nice.

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  2. Dave says:

    It should be pointed out by Yes campaigners (as Ciarán Toland effectively is here) that they are using the word sovereignty without qualifying it to mean that the people remain sovereign in the sense that they can revoke the sovereignty that they have given away. They do not determine their own affairs thereafter since they have transferred the applicable sovereignty to a third party. So they are not sovereign in the true sense that they can and do determine their own affairs. To use the term unqualified is to mislead.

    Because the Irish constitution bestows these sovereign powers on the Irish people, the State must ask the permission of the Irish people to give away their sovereignty to third parties. In the words of Justice J. Hederman, “The State’s organs cannot contract…in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers – not the disposers of them.”

    The State is not authorised to approve any significant derogation of sovereignty that is outside of the scope and objectives of a treaty. However, the Irish people should not approve this treaty thinking that the Grotty judgement will protect them in the future in the way that it has protected them in the past since there is little to nothing that could ever be held by the Supreme Court to fall outside of the “essential scope or objectives” of it.

    The Lisbon Treaty is an all-encompassing treaty with a constitution that takes supremacy over the Irish constitution itself, and the people should have a reasonable expectation that the treaty can and will be amended to promote the constitutionally-binding objective of “ever-closer union” between the Member States. The government has inserted an explicit commitment to the European in the 29th amendment (something that no other Member State has given) making it absolutely clear to any judge of the Supreme Court that Ireland has committed itself to EU integration.

    It is a brave man who would take a case to the Supreme Court challenging any further derogation of Irish sovereignty under this treaty.

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  3. Dave says:

    Incidentally, why should Ganley address Germany’s Basic Law? He didn’t claim that the EU was a federal state under Germany’s definition of a federal state.

    “For a free democratic fundamental order of a state such as it has been created by the Basic Law, the equality of all citizens when making use of their right to vote is one of the essential foundations of state order .”

    Germany found that the EU wasn’t a state because there is no European demos and the EU therefore didn’t need to be democratic. I think you will find that the fact that there is no European people is one of the core objections that democrats have toward the EU. Germany’s Federal Constitutional Court confirms in its judgement that there is no European people and that there therefore never can be any true democracy from the EU. It remains as a ghastly organisation that promotes its “ever-closer union” agenda of the bogus pretext that there is a European people.

    Europhiles have told us throughout this campaign that we must integrate because we are all a European nation (Heaney kept abnging on about it). Europhiles can’t have it both ways: if Germany’s Court is presumed correct about the EU not being a state then it should also be presumed correct about the non-existence of any European nation.

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  4. ulsterfan says:

    Relax . It is now over.
    Never has so much stress and tension been created for so little effect.
    To morrow we will wake up to the same world and the price of bread will be the same.
    Even if there are changes in the next 10 years they will not be noticed and no one will object.

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