Lisbon Essay (6): A ‘No’ will re-assert the need for a renewed respect for subsidiarity…

Brian Crowe is our first Northern Irish commentator on the Lisbon Treaty. He takes the view that the debate in the Republic has polarised between the mainstream parties on one side, the slightly constitutional Sinn Fein and what he calls the disreputable right… He takes issue with Michael McLaughlin’s view that the EU is a product of compromise between to great blocks of European opinion, arguing that beyond those two, there is a growing opinion, not least in the accession countries which holds in opposition to “EU federalism and renewed respect for subsidiarity”. By Brian Crowe

In the second of Slugger’s Lisbon Essays, Michael McLaughlin described the EU as a compromise between the forces of Christian Democracy and Social Democracy. The peoples of Europe owe a profound debt of gratitude to both political traditions for rebuilding democratic politics post-1945 after the horrors of Fascism and in the face of the Communist dictatorships to the east.

Whatever their distinctive and differing approaches to economic and social policy, both Christian Democracy and Social Democracy share a foundational commitment to European political integration. It is this commitment which differentiates both from what we might call the European Conservative and Reformist tradition that force on the centre-right which, while rejecting the social and economic politics of Social Democracy, does not share the Christian Democratic vision of a federal Europe.

The 2006 Prague Declaration and the recent creation of the European Conservatives and Reformists group in the European Parliament give expression to this other tradition on the centre-right. To some extent this tradition had always been latent within the Parliament – the new grouping has given coherence to the non-federalist centre-right parties associated with the ED and UEN groupings. Its core affirmation is, in the words of the Prague Declaration, “the sovereign integrity of the nation state, opposition to EU federalism and a renewed respect for true subsidiarity”.

It is this voice which is not being heard in the ongoing debate over Lisbon. The No camp is a coalition of the “slightly constitutional” Sinn Fein, the hard Left and the disreputable Right. To regard this as the sum of the opposition to Lisbon, however, is little less than disingenuous.

The rejection of the Treaty by the electorate of the Republic, and of its predecessor by the electorates of Holland and France, together with the consistently negative trend towards Lisbon in UK public opinion polls, points to a much more significant phenomenon than that represented by the Republics No coalition.

There is a profound disjuncture in many Member States between the desire of political elites for further political integration and popular scepticism over such proposals.

If this disjuncture is to give rise to a mature, meaningful debate over the future direction and shape of Europe, it requires a more authoritative voice to emerge from within the mainstream of Europe’s democratic political traditions. In its absence, the national debate within the Republic has little, if any, enduring relevance to the future shape and direction of the Union.

The hard Left and the disreputable Right, with their shared suspicion of free societies, pluralism and open markets, cannot provide a legitimate alternative to the Christian Democratic-Social Democratic belief in a federal Europe.

While I share the unease of the Yes camp at the beliefs and credentials of the No coalition, I remain convinced that a No vote is in the interests of Europe. The short-term boost that a No vote will give to the hard Left and disreputable Right is outweighed by the fact that it will create space for a wider, more meaningful debate on the future of Europe.

The fact is that a socialist Europe and a nationalist Europe are both non-starters. The real and important debate is to be had between federalists and non-federalists.

A No vote in Ireland will provide an opportunity for what I hope will be the next Conservative government in the UK to legislate for a referendum on Lisbon – a referendum which would, without doubt, return an overwhelming No. This illustrates that cheap jibes about those of us opposed to Lisbon being nationalists entirely miss the point.

The peoples of Ireland and of the UK could together help to reshape Europe, in which respect for our continents historic nation-states replaces the obsession with political integration.


Brian Crowe is the UUP’s Director of Policy and was a policy advisor to Jim Nicholson’s European Election campaign.

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  • Mack

    Brian –

    The amendments to the Irish Constituition that will (if passed) facilitate the government passing Lisbon make it clear that EU law derives it’s authority from Bunreacht na hÉireann.

    In particular Article 29.4.11, rescinding this Article would enable the rolling back of any EU legislation that conflicts with Bunreacht na hÉireann as it stands today. I.e. Bunreacht na hÉireann retains it’s ultimate overall primacy, while preventing constituitional challenges to EU law via Article 29.4.11. Obviously this exemption from constituitional challenge only exists as long as Article 29.4.11 remains in Bunreacht na hÉireann.

    Article 29.4.11:

    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 thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.

    Whatever about the federalist goals of other European politicians, and regardless of any constitutional issues Lisbon throws up for states without a written constituition – Ireland remains sovereign, and Lisbon does not subsume Ireland into a federal EU superstate.

  • Mack

    It looks like the new amendment text is available (the above is from last years bill).

    http://en.wikipedia.org/wiki/Twenty-eighth_Amendment_of_the_Constitution_of_Ireland_Bill,_2009

    It’s now Article 24.4.6:

    6. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—
    i. the said European Union or the European Atomic Energy Community, or by institutions thereof,
    ii. the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or
    iii. bodies competent under the treaties referred to in this section,
    from having the force of law in the State.

    Article 24.4.7 makes clear that the state will not adopt all EU directives, but will use discretion in a number of areas.

    Article 24.4.7:

    The State may exercise the options or discretions—
    i. to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies,
    ii. under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), and
    iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State,
    but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

  • Neville Bagnall

    Brian is undoubtedly correct that the real long term debate in the European project isn’t about its economic system or the democratic credentials of its institutions, important and all as they are, its about the boundary between Union and States.

    A similar debate is still ongoing in the USA to this day.

    That the centre-right has split along those lines within the Parliament is a welcome development as it reflects a developing european polity.

    The centre-left may split in time too, but as nominally internationalist in outlook, socialist parties tend to be more comfortable with the current EU confederation.

    I’m not sure that I agree with him that the nation state is either the historic or natural political configuration of Europe. City states and Empire are two extremes that have just as much historical claim.

    Nor do I believe that the Treaty of Westphalia should be any more (or less) precious than the Treaty of Rome.

    All the major national parties contain both Federalist and Nationalist wings. Which dominates varies from country to country.

    Within each national polity it rarely if ever matters, and since the european polity barely exists, most electorates remain unaware of the issues.

    Currently we have a confederation (EU) within a trade area (EEA).

    Maybe in time that will evolve into a federation within a confederation within a trade area.

    I think that would be a false division as the tendency would be for the confederation to dissolve into irrelevancy, with most of the decisions being taken by the federation and the confederation stagnating at the point at which the split happened, and atrophying into little more than the trade area, with most of the obligations and few of the rights.

    Better to have areas of enhanced co-operation within a confederation.

    Our obsession with political integration is older than the european project. The nation state is itself the end result of such obsession on a national level. And the League of Nations, G20 and UN a reflection of it on the global stage.

  • Con

    The No camp is a coalition of the “slightly constitutional” Sinn Fein, the hard Left and the disreputable Right.

    And where do trade unions like UNITE and the TEEU, which have called for a No vote, fit into that paradigm?

  • Dave

    “The amendments to the Irish Constituition that will (if passed) facilitate the government passing Lisbon make it clear that EU law derives it’s authority from Bunreacht na hÉireann.

    In particular Article 29.4.11, rescinding this Article would enable the rolling back of any EU legislation that conflicts with Bunreacht na hÉireann as it stands today.” – Mack

    You have this completely the wrong way around. Article 29.4.11 declares that EU law has primacy over Irish law and, specifically, over Bunreacht na hÉireann. In other words, it allows EU law to override Irish law. Essentially, it establishes that the constitution of Ireland is subordinate to the EU Constitution in any conflict between the two. The effect is to establish a supranational federal state where the former sovereignty of its member states is downgraded to the new constitutional status of regional states within this federation and wherein all of the citizens of the member states become proper citizens of the EU.

  • Dave

    Mack, in case your confusion arises from which constitution “this Constitution” in Article 29.4.11 refers to rather than from a deliberate attempt to mislead the reader, you should understand that it refers to Bunreacht na hÉireann and not to the proposed EU Constitution (ratifying the Lisbon treaty will make the EU Constitution EU law and will make the ECJ the supreme court for interpretation of the the new constitution).

    This new EU Constitution takes precedence over the Irish constitution, so that, for example, if any Irish law is found to be repugnant to the EU Constitution then it can be struck down by the ECJ. The EU Constitution then becomes the sovereign authority for the Irish state as a region of the EU, rendering Bunreacht na hÉireann irrelevant in its former role of establishing an independent sovereign state so that the Irish people will no longer be sovereign and the Irish constitution will no longer be “the highest form of law in the land” since, of course, there Ireland will become a region of the EU operating under its constitution, its law, and under its Court (the ECJ).

    Unlike the EU constitution, Bunreacht na hÉireann was not imposed upon the people without their consent (they approved the Draft by plebiscite) and it cannot be altered without the consent of the people. This is because a constitution has the primary purpose of protecting the people from the state. Under the EU’s regime, the people are expressly forbidden from deciding what their fundamental political, civil, constitutional, human, and national rights should be. Indeed, an unelected regime may determine the rights of the people at their sole discretion and may also set aside the rights of the people at their sole discretion. This makes the people into the property of the state, having no more rights than an unelected regime declares that they are entitled to (or are not entitled to). A ‘constitution’ that fails to protect the people from the state is, of course, simply a bad joke that offers people no protecting from the state whatsoever.

    Here is what Article 29.4.11 says: “No provision of this Constitution [Bunreacht na hÉireann]…prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof [e.g. the ECJ], or by bodies competent under the treaties referred to in this section, from having the force of law in the State [Ireland].”

    Clearly then, contrary to your bogus claim, authority resides with the EU and not with Ireland and precedence resides with the EU constitution and not with Bunreacht na hÉireann. Ireland declares itself to be a sovereign independent state in name only.

  • Neville Bagnall

    Yes, it is Article 29.4.11 that gives EU law primacy over Irish law, but not over the Irish Constitution. And no legal document be it Bunreacht na hÉireann or any international Treaty has Sovereignty in Ireland.

    Bunreacht na hÉireann derives its power from the people of Ireland:

    We, the people of Éire, … Do hereby adopt, enact, and give to ourselves this Constitution.

    Part of that constitution says:

    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

    Only the Irish people can change the Irish constitution, because the Irish Constitution is an instrument of the Irish people.

    The Articles do not place the EU Treaties above the Irish Constitution, they make them part of it. The Irish Constitution is made up of Bunreacht na hÉireann and any International Treaties which are ratified by the state under permissions granted by the people in Article 29.

    If the Irish people removed Article 29.4 no organ of the Irish State from the lowliest official to the Supreme Court could have any cognizance of further european law and the Constitution would regain full primacy over any European law that had been incorporated into our legal system.

    Passing such a simple amendment would obviously throw the EU and Ireland into crisis however.

    Instead Lisbon contains a mechanism for the orderly withdrawal of a state from the EU.
    Invoking that mechanism in Ireland would almost certainly be followed by an amendment to modify or remove the EU Paragraph from the Article depending on whether we were remaining in EFTA.

    In Ireland the People are Sovereign, not the Oireachtas and not the Constitution. This is different to the UK where the Parliament is Sovereign. EU law has primacy over Irish law only to the extent that We the People have acknowledged that it does and recorded that acknowledgement in Bunreacht na hÉireann. We the People can change our minds at any time and bear the consequences. That is our right and our burden.

  • Neville Bagnall

    Sorry, I misspoke, I should have said:

    If the Irish people removed Article 29.4 no organ of the Irish State from the lowliest official to the Supreme Court could have any cognizance of further european law and Bunreacht na hÉireann would regain full primacy over any European law that had been incorporated into our legal system.

  • Dave

    “Yes, it is Article 29.4.11 that gives EU law primacy over Irish law, but not over the Irish Constitution. And no legal document be it Bunreacht na hÉireann or any international Treaty has Sovereignty in Ireland.”

    This is not correct. All treaties in the Irish Constitution have a clause similar to Article 29.4.11 which declares that the treaty has primacy in the area that it covers. So, in all the areas where sovereignty has already been transferred from the Irish state to the EU (such as fishing rights in Irish territorial waters), the Irish constitution is no longer “the highest form of law in the land.”

    What is profoundly different about this treaty is that another constitution is declared to have priority over the Irish constitution. In other words, it is not an area of Irish sovereignty that is transferred – such as immigration, transport policy, territorial waters, etc – to the EU but Irish sovereignty itself. The EU constitution takes precedence as the “the highest form of law in the land” and the ECH takes precedence over the Supreme Court as the highest court in the land.

    Ireland, of course, retains its constitution but it does not retain its sovereignty. If any part of the Irish law or the Irish constitution is held to be repugnant to the EU constitution, then the repugnant provision of the Irish constitution will be declared unlawful.

    It may not be declared so by the Irish people or by their national courts, but it will have to be amended in order to comply with EU law. It will be interesting to see what would happen if the people refused to amend it. Interesting but academic, since amended or not, it will cease to have legal effect.

    As the Article 29.4.11 clearly states: “No provision of this Constitution …prevents laws … by the said European Union or by institutions thereof [e.g. the ECJ]… from having the force of law in the State.”

    Where such a conflict arises, EU law takes precedence over the Irish constitution. Sovereignty therefore resides not with the Irish people under their redundant constitution but with the EU under its new EU constitution.

    “In Ireland the People are Sovereign, not the Oireachtas and not the Constitution. This is different to the UK where the Parliament is Sovereign. EU law has primacy over Irish law only to the extent that We the People have acknowledged that it does and recorded that acknowledgement in Bunreacht na hÉireann. We the People can change our minds at any time and bear the consequences.”

    Actually, the UK constitution has two parts: political sovereignty and legal sovereignty. Under political sovereignty, the power resides with the people; and under legal sovereignty. it resides with parliament. This will be amended by the proposed establishment of a UK Supreme Court where parliamentary sovereignty will be further diminished.

    Lord Norton, who is acknowledged to be the leading authority on British constitutional law, agreed with a point I made to him about how sovereignty is becoming a theoretical concept. It is assumed that the UK can revoke the treaty but there is no way of actually knowing what the UK Supreme Court will do.

    “Dave: You are quite right that the doctrine of parliamentary sovereignty is under challenge. It has been under challenge for some time from those who query Dicey’s interpretation of the doctrine and is now queried in respect of our membership of the EU. Though it still appears to be the case that most jurists accept that if Parliament repealed the European Communities Act 1972, the courts would enforce that, there are some who now challenge this assumption.” – Lord Norton

  • Dave

    [b]Continued[/b]

    In Ireland’s case, its constitution will become subordinate to the proposed EU constitution so there is no way of knowing what provisions of it will be rendered void by any decision of the ECJ. It is this court that will have the sovereignty post Lisbon ratification, not the Irish people. The Irish Supreme Court cannot overturn any decision of the ECJ – only vice versa. That is the meaning of transferring sovereignty from the Irish people to the EU in the matter of the fundamental document that makes the Irish people sovereign. They are not, of course, sovereignty when they have given away their sovereignty.

    If Lisbon is ratified, then there will be no further treaties to amend the EU as the Lisbon treaty is self-amending. Ratifying this provision means that Irish people will have no moral or legal basis to reclaim their disposed sovereignty since it follows that they have renounced the right to veto any further transfers of their sovereignty to the EU. Under the Grotty judgement, a referendum is needed to approve such transfers. That is interpretation of the Irish constitution (Article 6, s. 1) by the Supreme Court what declares Irish sovereignty resides with the people and not with parliament. That will no longer be the case post-Lisbon. Any further transfers of Irish sovereignty to the EU is pre-approved by approving a self-amending treaty. If anyone tries to take a case to the Supreme Court when the Irish government – not the Irish people – transfer more sovereignty to the EU, that is the guaranteed verdict of the Supreme Court, i.e. that the Irish people are no longer sovereign and that they do not need to approve the transfer of that which they have declared is no longer theirs to transfer.

    In regard to the Article 49a TEU: it only regulates what was already possible in the past, since no Member State would have been mandated to stay in the EU against its will. Post Lisbon, and despite this clause, Member States are progressing to where what was possible in the past is no longer possible in the future. How much of their fundamental sovereignty they will have given away is unknown mainly due to a biased court (the ECJ) becoming the highest court in the land and a new constitution taking precedence over their redundant national constitutions to protect the rights of a new class of EU citizens who are all subject to a new class of supranational law. This is part of the theoretical concept. It is not simply this new constitution creating its new federal state that makes withdrawal legally theoretical but degree of standardisation, integration, et al, that forces people into a position where they do not want to be.

    Democracy is void without sovereignty. There is little point electing a government if the policies are not determined by the people and if that government merely acts as a colonial administration on behalf of the foreign regime that does decide which policies are implemented. Having sovereignty which you do not exercise if rather like having a wife who sleeps and cooks for your neighbour and not with you. You may refute to those who call you cuckold by claiming that you have the sovereignty to command your wife to return at time you choose; and while you may think it is so what use is that if your wife sleeps only with another man?

    Article 1 of the UN’s ICCPR, the cornerstone of international law, specifically stipulates that all nations have the right to govern themselves: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” It is a mockery of freedom to abrogate that fundamental right – that so many have died to secure for their respective nations. This vile EU project is in direct violation of international law.

  • What exactly is the disreputable Right, in Irish terms? Cóir are tagged as being “right-wing” because they’re Catholic on social issues. Well, so are a lot of Irish people. So is the Pope. Hardly controversial, is it? Without ‘Citizen’ Declan Ganley as the poster boy for scary right-wing (neoconservative/Russian?) influences the vague forumlation ‘disreputable Right’ loses some of its sting.

    What Mr. Crowe fails to realise is that there is never going to be mainstream, centrist opposition to expansive EU federalism (really centralism), and thus no balm for his ‘unease’, because dissenting voices are automatically shunted off to the fringes. The 67% of Britons who oppose the ratification of the Lisbon Treaty are solely represented on this issue by UKIP whom the Irish media insist are a sinister, disreputable right-wing party. David Cameron’s Unconservative Party will NOT legislate for a referendum on Lisbon. That is a fantasy.

    Cóir are bog-standard Irish Catholic conservatives, probably FF/FG types. UKIP are old-fashioned, unreconstructed traditional Tories. Libertas were neoconnish, modern conservative types. What on earth is disreputable about any of these groups aside from the fact that they oppose the Lisbon Treaty?

    The truth is that if Mr. Crowe were to start an organisation called The Moderate, Centrist, Reasonable Campaign for a No to Lisbon we’d very soon be reading newspaper editiorals about the shady right-wing Crowe, his dark past, his shadow business connections etc.

  • Mack

    the Irish constitution is no longer “the highest form of law in the land.”

    But it is Dave. The primacy of Irish Statutes introduced because of EU directives that conflict with existing statutes come derives from those clauses. The exemption from Constitutional challenge of Irish statutes introduced because of EU directives derives from those clauses.

    If we remove those clauses from the constituition (it would take 1 referendum) and the exemption from Constitutional challenge would be removed. Ultimately that means we remain a sovereign nation state and not a sub-state within a super-state. Compare and contrast this with NI’s position in the UK? Westminster is sovereign and rights to legislate and executive power must be devolved from there. Even after the GFA there is no right to a referendum on the border and no legal imperative on the British government to implement the result. In Ireland we devolve power to the EU, we can revoke it with a referendum. If we vote to remove the clause, it must go..

  • Neville Bagnall

    The Irish constitution is no longer “the highest form of law in the land.”

    My argument is that the EU Treaties are part of the Irish Constitution, that the Irish Constitution consists of multiple documents:

    – Bunreacht na hÉireann
    – The European Treaties as amended, with options.
    – Agreement relating to Community Patents
    – British-Irish Agreement
    – The Rome Statute of the International Criminal Court

    [ECJ] takes precedence over the Supreme Court as the highest court in the land.

    Well, its at least a co-equal Court. I would read it that in the areas of Exclusive or Joint Competence, the ECJ is the highest, in the areas of supporting competence or where the EU has no competence, the ISC is the highest court.
    I think that is the case now. I’m reasonably sure that the ECJ is the final arbiter of where competence lies already, so you could argue that the ECJ is already the highest court.
    Actually, since the ECHR can be appealed to from the ISC in some cases, and the EU will also become a signatory to the ECHR, the ECHR will become the highest court in the land.

    Ireland, of course, retains its constitution but it does not retain its sovereignty.

    Well, as you pointed out there is political sovereignty and legal sovereignty.

    I’d argue that political sovereignty is inalienable. If the Irish Nation decides at some point in the future to adopt a sovereign legal constitution that excludes the European Treaties, the EU (under its principles of conferral, subsidiarity and proportionality) should do nothing more than ask for negotiations on transitional arrangements.
    I’ll grant that if the EU was at that time a great power, and so corrupted as to pay no credence to those principles, it might have the military capability of preventing that.
    But the price of freedom is eternal vigilance, and just as we must remain vigilant for the breakdown of the Rule of Law within Ireland, so we must remain vigilant within the EU.
    For now I remain confident that the EU would abide by its own principles and facilitate Irish withdrawal, evidenced by the addition to the treaties of a legal procedure for so doing, and so I have no concerns about political sovereignty.

    On legal sovereignty, I already believe that Irish sovereignty is encapsulated in multiple documents with competences divided among those documents both national and international and I do not see this changing, nor the right to move competences from one document to another being taken from the People.

    If any part of the Irish law or the Irish constitution is held to be repugnant to the EU constitution, then the repugnant provision of the Irish constitution will be declared unlawful.
    As the Article 29.4.11 clearly states: “No provision of this Constitution …prevents laws … by the said European Union or by institutions thereof [e.g. the ECJ]… from having the force of law in the State.”

    I believe that is currently the case with the existing EU Treaties, (Article 29.4.10 currently) please correct me if I am wrong.

    Continued…

  • Neville Bagnall

    …Continued

    If Lisbon is ratified, then there will be no further treaties to amend the EU as the Lisbon treaty is self-amending.

    I agree.

    If anyone tries to take a case to the Supreme Court when the Irish government – not the Irish people – transfer more sovereignty to the EU, that is the guaranteed verdict of the Supreme Court, i.e. that the Irish people are no longer sovereign and that they do not need to approve the transfer of that which they have declared is no longer theirs to transfer.

    I disagree. We have not declared that transferring competence is a competence of the EU, neither joint nor supporting. It is a National competence. That fact is the dividing line between confederation and federation. The EU remains a confederation. The Treaty itself distinguishes amendments that transfer competence from amendments that do not. The “Ordinary revision procedure” is required for any competence transferring amendments. That procedure requires a convention or an IGC and

    The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

    Our constitutional requirements are set out in Article 46 of Bunreacht na hÉireann. The government still requires permission to change the EU Treaty document (part of the Irish constitution in my view) in any way that transfers competence. That requirement is encoded in both Bunreacht na hÉireann and the EU Treaties and should be vindicated by both courts.

    The amendment will probably have a wording similar to the following:
    “The state may ratify the Amendments amending the done at on

    Hopefully, most referendums in future should be specifically about competence, and not entangled with other ancillary matters best handled by more normal parliamentary procedures. Time will tell.

    Yes, the EU has a habit of taking an inch of competence and turning it into a mile. That fact prompted the addition of first the subsidiarity and proportionality principles, and now the National Parliamentary preview procedure. Time will tell if that is enough. If not we will have allies in doing more. And we have mechanisms; we have first, a democratic means of changing competences – any state can propose an amendment to transfer competence back to the nations; second, a democratic and streamlined means of controlling creep by proposing amendments that restrict the institutions without changing overall competence; and third, a defined procedure for withdrawal that allows us to negotiate for maximum advantage.

    I remain satisfied that Lisbon does not alter the fundamental nature of our sovereignity, either political or legal. That was altered with the insertion of Article 29.4.3, or de facto, if not de jure, in 1973.

  • Dave

    Mack, I don’t mean to be abrupt, but you are confusing a number of different concepts. Firstly, derogation of sovereignty and the right to repeal that derogation. Insofar as you retain the right of repeal of derogation, you can claim to be sovereign in that you have that right of repeal. Insofar as you derogate your sovereignty to third parties, you cannot claim to have be sovereign in that those to whom you have derogated your sovereignty exercise it, not you. You may, of course, remove this power of attorney – so to speak – from those who order your affairs but you cannot claim to order your own affairs when you clearly do nothing of the sort.

    Now, as I pointed out, EU law has primacy over national law. If Lisbon is ratified, the proposed EU constitution will become EU law and this constitution will take precedence over the Irish constitution. Who do you think gave primacy to EU law over national law? The ECJ (Costa v. ENEL). No national government ever agreed to it. It does not appear in any of the treaties but it is nonetheless the primary law. In fact, the supremacy of EU law is stated for the first time in an EU treaty in the Lisbon treaty. It is introduced in a special declaration (No.17) as non-binding (referring innocently to ”the well-settled case-law of the EU Court of Justice”), but the declaration actually refers to the already existing legally binding judgments which the Member States expressly acknowledge.

    I don’t know if I really need to explain to you what “No provision of this Constitution” means but if I do then it means exactly what it says on the tin (copyright Ronseal). In other words (if required): if the ECJ decides that any provision of the Irish constitution (any right stipulated therein, such as the right to amend the constitution) then it is declared void.

    You do not have the right to disagree with any such decision of the ECJ. It is final, and it is the applicable law. Now, at a stroke, you have been stripped of your fabled right to repeal that derogation of your sovereignty, haven’t you? Yes, you have; and there is absolutely nothing you can do about it because you have declared that the EU constitution has priority over your own constitution and that your sovereignty resides with the ECJ and not with you (the Irish people).

    For example, when the ECJ struck down a provision of the German constitution, what happened is that the national law was declared void. That simply meant that the German courts must ignore the national law.

    It very much means that Ireland becomes “a sub-state within a super-state” since, post Lisbon, its constitution becomes the ‘local’ law and EU constitution becomes “the highest form of law in the land.” You, as a people, may of course still devise any law that you wish – just so long as you do not devise any law that conflicts with your new supreme constitution. If you do, then your ‘local’ constitution will be put in its proper place by the Court that represents “the highest form of law in the land” (the ECJ).

    Neville Bagnall, I’ll try to get back to your post tomorrow, as it contains more errors than I have the time to correct. 😉

  • Mack

    Dave –

    I agree with a lot of what you have written above, just at the critical point you’ve misinterpreted what it actually means.

    Who do you think gave primacy to EU law over national law? The ECJ (Costa v. ENEL). No national government ever agreed to it.

    That’s not true. EU law stems from EU directives which have to be implemented locally and separately in each country. Where there is a conflict between the local implementation of an EU Directive and existing corpus of EU law the local implementation of EU law must be given primacy. That in itself isn’t a matter of law in each juristiction – the government of each state has as an obligation of it’s membership of the EU to ensure the law deriving from EU Directives has primacy. I.e. if it doesn’t they must change local law so that it does.

    You do not have the right to disagree with any such decision of the ECJ. It is final, and it is the applicable law

    As a member state of the EU you have an obligation to ensure it’s decisions are enforced. In local Irish law, they only have whatever legal force the Irish people derogate to them. If we decide otherwise the decisions of the ECJ can have no legal force.

    Insofar as you retain the right of repeal of derogation, you can claim to be sovereign in that you have that right of repeal.

    Agreed.

    Insofar as you derogate your sovereignty to third parties, you cannot claim to have be sovereign in that those to whom you have derogated your sovereignty exercise it, not you.

    Agreed. But see point above, as long as you can repeal the act of pooling sovereignty you do retain ultimate sovereignty.

    Dave – compare and contrast Ireland within the EU and Northern Ireland within the UK. In the UK Westminster is sovereign and authority is devolved from there, any referenda in NI are merely consultative, the NI parlament can be disovled, and laws at Westminister directly become laws in NI – no need for local implementation. Westminster can withdraw authority from the NI assembly and executive at any time.

    In Ireland and the EU however, sovereignty is pooled from the Irish state to the EU, constituitional referenda have legal force, EU directives must be implemented as Irish statutes to have legal force. We can withdraw from the EU at any time, we can invalidate their laws with a single constituitional change.

  • Mack

    Typo in the above

    Where there is a conflict between the local implementation of an EU Directive and existing corpus of EU local law the local implementation of EU law must be given primacy.

  • Here’s a report by Pepe Escobar in the Aisa Times about how the European taxpayer is being fleeced to pay for Afghanistan. He cites the cost to the Italians as an example.

    http://www.atimes.com/atimes/South_Asia/KI09Df01.html

  • Mack

    Miriam –

    You truly are a wealth of misinformation & a master of misdirection.

    Italy is a member of NATO, they are in Afghanistan because of their NATO obligations.

  • Neville Bagnall

    Afghanistan has nothing to do with Lisbon, but my research has thrown up an interesting point…

    As far as I can determine, the plan to invade Afghanistan if the Taliban refused to hand over bin Laden existed before 9-11. That would have been illegal under international law as the UNSC resolutions only imposed sanctions on Afghanistan for refusing to extradite bin Laden.

    After 9-11 the US and UK carried out the plan without a UN mandate (while R. 1373 has enormous implications in international law, it did not authorize force). The US claimed self-defense, but the UN charter only recognizes states as actors, not terrorist organisations.

    In December 2001, the UNSC passed R. 1386 authorising a peace keeping force. It is under this resolution and the triple lock that Ireland has troops in Afghanistan. Believe it or not, despite the UN handing over control to NATO in 2003, it remains a blue-cap operation as far as I can tell, but there is some doubt in my mind – R. 1776 seems to have expired in October 2008. If that is true our troops may be there illegally.

    Our contribution (like that of the other 40+ states) was de jure a contribution to a UN peacekeeping operation, just as in the Congo, Lebanon, etc, bizarre as that may seem.

    The EU is not in any way forcing us to contribute to the war in Afghanistan. Its a choice we made ourselves and that we could reverse ourselves, if in fact it has not already been made illegal by the expiry of the UN mandate.