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

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.

Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty