What Irish Taoiseach Brian Cowen should now do on Lisbon

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by Anthony Coughlan, Secretary
The National Platform EU Research and Information Centre

There will be a UK general election in the next 18 months which will return a Conservative Government that is committed to holding a referendum on the Lisbon Treaty in Britain and Northern Ireland and recomending a No vote to it so long as the Republic's voters have not reversed their rejection of Lisbon in the meantime, which would enable that Treaty to come into force for all 27 EU States before that election.

This change of government in Britain will enable our fellow countrymen in Northern Ireland, as well as the British people, to give their view on the undemocratic Federal EU Constitution which Lisbon embodies, so that they can reject it as French, Dutch and Irish voters have already done.

As William Hague, Conservative Shadow Foreign Secretary, wrote in the Irish Times on 27 July: "If Lisbon remains unratified by all EU members, a Conservative government will put Britain's ratification of the treaty on ice and hold a referendum, recommending a No vote to a document that we believe represents an outdated centralising approach to the EU. So the chances are growing that Ireland' voters will not be alone in saying No to Lisbon for long." (See full article below)

Irish Taoiseach Brian Cowen should now tell his EU partners that he thinks the wisest course in relation to Lisbon is to wait until the British people and the people of Northern Ireland can have their say on this profoundly important treaty.

He should resist the bullying of France's President Sarkozy, Germany's Chancellor Angela Merkel and Commission President Barroso, who wish to force the Irish people to hold a Lisbon Two referendum on what legally would be exactly the same Treaty so as to reverse their No vote of last June.

Lisbon cannot come into force without Ireland. Sarkozy, Merkel and Barroso want to reverse the Irish people's No vote even though the French and Dutch Governments respected the decision of their voters when they rejected the EU Constitution in 2005. They did not put the same Treaty to their peoples again.

By failing to tell his EU partners that Ireland could not ratify Lisbon after its June's No referendum, Taoiseach Brian Cowen encouraged them to continue with their ratifications. They now seek his connivance in imposing a Federal Constitution on Europe and turning 500 million Europeans into real citizens of a Federal EU without permitting them any say on such a constitutional revolution by means of referendums.

Article 6 of the Irish Constitution states that it is the right of the people "in final appeal, to decide all questions of national policy". The Irish people have decided to reject Lisbon. Respecting that decision, which the Taoiseach says he does, means not attempting to overturn it. Any attempt to put the same Lisbon Treaty to the Irish people again would almost certainly be in breach of the Irish Constitution and should be challenged in the Courts.

It is outrageous of British Labour Prime Minister Gordon Brown to have junked the commitment of Tony Blair to hold a referendum on the EU Constitution in the UK, when this was a Labour Party Manifesto commitment in the last general election. Gordon Brown's government has acted profoundly undemocratically in refusing the British people their say in this matter.

Just as Charles Stewart Parnell in the late 19th century urged the people of Ireland and Britain to support now the Liberals, now the Tories, in order to advance Ireland's interests, Irish democrats, nationalists and republicans, as well as all consistent British democrats, should now look to the British Labour Government being ejected from office at the earliest possible opportunity, so that Labour can rediscover its soul in opposition and enable the British people have their say on Lisbon just as Irish voters have done.

The practical alternative to the Lisbon Treaty/EU Constitution is to go back to the 2003 Laeken Declaration on a more democratic, more transparent and less centralised EU, whose laws would be made in proper democratic fashion by people who are elected directly to make them, and not by bureaucrats, judges and bankers.

What is now needed after Ireland's No is not a "period of reflection", as after the rejection of the 2004 Constitutional Treaty, but a "period of consultation" with the citizens of the Member States on what kind of EU people really want, as the Laeken Declaration envisaged.

The Laeken Convention from which Lisbon came was hijacked from the start by the Eurofederalists, out to give the EU the constitutional form of a Federation. This the peoples of the EU Member States emphatically do not want, although many of their political elites do want it because it gives them more power personally at their expense of their own peoples.

The Irish people did the EU a good turn by voting No on 12 June last. Lisbon and the EU Constutution which it embodies has now been rejected in France, Holland and Ireland because it is a thoroughly bad treaty - bad for these countries and bad for the EU.

Recall some of the bad things which Lisbon proposes to do:

1. Lisbon would abolish the European Community which we have been members of since 1973 (Art.1 TEU) and would replace the existing EU with a legally new Union in the constitutional form of a supranational EU Federation with its own legal personality distinct from its Member States. Instead of being sovereign States in the international community, Lisbon would reduce Ireland and the other Member States to the constitutional status of provincial states in a Federation, like Virginia inside the Federal USA or Bavaria inside Federal Germany. The laws of this new European Union would thereafter have primacy over national Constitutions and laws (Arts.1 and 47 TEU; Declaration No.17 concerning Primacy).

2. It would make us all real citizens of this new EU Federation, owing our prime obedience to its laws and loyalty to its authority over and above our citizens' duty to our national Constitution and laws in any case of conflict between the two.

One can only be a citizen of a State and all States must have citizens. Instead of EU citizenship being "complementary" to national citizenship and essentially notional and symbolical(Art.17 TEC), Lisbon would make EU citizenship "additional to" national citizenship (Art.9 TEU). This would give us all a real dual citizenship, not of two different States but of the Federal and provincial levels of one State, as in the USA or German federations.

One example of this change: If Lisbon came into force MEPs, who at present are "representatives of the peoples of the States brought together in the Community"(Art.189 TEC), would become "representatives of the Union's citizens", just as in any State (Art.14.2 TEU).

3. It would be a power-grab by the Big States, with EU law-making in the Council of Ministers based henceforth primarily on population size as in any unified State, thus greatly increasing the power of the Big EU Members with large populations and reducing the voting weight of Ireland and the other smaller states. Germany's voting weight in making EU laws would double as a result, while Ireland's would halve (Art.16 TEU).

4. It would remove the right of EU Member States to decide who their national Commissioner would be in the ten years out of every 15 when they would have a Commissioner under Lisbon. It would do this by replacing each Member State's present right to "propose" a Commissioner - and to insist if need be on its proposal being accepted as a condition for it accepting the proposals of others - by the right to make "suggestions" only for the incoming Commission President to decide. Who the Commission President is would be decided mainly by the votes of the Big States (Art.17.7 TEU).

5. It would give the EU Court the power to decide our fundamental rights as EU citizens, rights which the EU and its Member States would then have to enforce over and above our rights as Irish citizens in any case of conflict between the two (Art.6 TEU and the EU Charter of Fundamental Rights.

6. It would weaken National Parliaments further by abolishing 68 national vetoes and would give the EU power to make European laws binding on us in some 30 new policy areas, such as crime, justice and policing, public services, immigration, energy, transport, tourism, sport, culture, public health and the EU budget.

7. It would give the EU the power to raise its own taxes and impose any tax, including income tax or sales tax, by consensus amongst the governments, without the need for further new treaties or referendums (Art.311 TFEU).

8. It would empower the EU Court of Justice to order the harmonization of indirect taxes amongst the EU countries if the Court judged that failure to do so constituted a "distortion of competition" (Art.113 TFEU).

9. It would militarize the EU further, requiring Member States "progressively to improve their military capablities" (Art.42.3 TEU ) and it contains what Commission President Barroso has termed "a mutual defence clause", requiring Member States to go to the assistance of other Member States in the event of war (Art.42.7 TEU).

10. It would subvert workers' rights by copperfastening the recent Laval, Rüffert and Luxembourg judgements of the EU Court of Justice, which were delivered after Lisbon was signed and which subordinate employee wage bargaining to the EU's internal market rules.

11. It would be a self-amending Treaty which would permit EU law-making to be shifted from unanimity to majority voting without the need for new Treaties or referendums (Art.48 TEU).

12. It would reintroduce the death penalty "in time of war or of imminent threat of war" for the European Army it envisages by providing for the post-Lisbon EU acceding as a corporate entity to Protocol 6 of the European Convention of Human Rights which permits use of the death penalty on these occasions, instead of to Protocol 13, which bans the death penalty in all circumstances and which most EU Member States have acceded to (Explanation attached to Art.2 of the EU Charter of Fundamental Rights). This item is in a footnote of a footnote in the Lisbon Treaty and has caused much controversy in Germany and Austria, although most people in Ireland and Britain have never heard of it.

13. It would make National Parliaments formally subordinate to the post-Lisbon EU. Far from increasing the power of National Parliaments, as pro-Lisbon spokesmen untruthfully assert, Lisbon underlines their implicitly subordinate role in the institutional structure of the post-Lisbon Union by providing that "National Parliaments contribute to the good functioning of the union" by various means set out in Article 12 TEU. Under Lisbon National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third of National Parliaments object, the Commission can then decide to continue with its legislation unamended, with its decision confirmed by the normal Council of Ministers QMV procedure (Protocol on Subsidiarity and Proportionality, Art. 7.2). In no sense is this giving "more control" to National Parliaments, as pro-Lisbon spokesmen continually assert.

14. It would create a political government of the new Union by turning the regular summit meetings of EU Prime Ministers and Presidents, known as the European Council, into a formal legal instititution of the Union for the first time (Art.13 TEU). This would mean that its acts and failures to act would become subject to legal review by the EU Court of Justice (Arts 263-5 TFEU). This would also mean that individual Prime Ministers and Presidents would be constitutionally obliged henceforth to represent the Union to their Member States as well as their Member States to the Union, with the former function having legal priority in any case of conflict between the two.


A Note on all EU Member States keeping their Commissioners under Nice
The Lisbon Treaty's provision that Member States would lose their present right to decide who their national Commissioner would be (Art.17.7 TEU) makes the retention of one Commissioner per Member State instead of their reduction by one-third from 2014 (Art.17.5 TEU) of little value anyway, should this be agreed next December as expected.

A declaration by the EU Prime Ministers and Presidents that if Lisbon is ratified by all Member State including Ireland the European Council will exercise its discretion in 2014 to have one Commissioner for every Member State might have some political but no legal value, for it would not be part of the Treaty. It could only be relied on until such time as no one was paying attention anymore post-Lisbon, when the European Council could use its discretion to cut the number of Commissioners or - perhaps more likely - introduce permanent senior and junior ones.

The Nice Treaty's Protocol on EU Enlargement (Art.4.2) requires the number of EU Commissioners to be less than the number of Member States from 2009, although by an unspecified number to be agreed unanimously. If the European Council is now prepared to accept that the number of Commissioners should continue to be equal to the number of Member States, it would be perfectly possible for it to agree to an amendment to the Nice Treaty to repeal the present Article 4.2, get that approved by the EU Parliament and then ratified by all the Member States. This would not need a referendum in Ireland to approve it.
Art.4.2 of Nice's Protocol on EU Enlargement could also be legally implemented by the Member States agreeing that from 2009 that there would be 26 Commissioners instead of 27 and that each country would lose its Commissioner in alphabetical order every five years, beginning with Belgium. This would mean that Member States would only lose their Commissioner every 135 years (five times 27) and Ireland's turn would not come for 30 years. Former Irish Attorney General David Byrne referred to this as another legal possibility when he was Irish Commissioner during the 2001 and 2002 Nice Treaty referendums.

In practical reality the EU Prime Ministers and Presidents can agree unanimously to keep all 27 Commissioners if they are so inclined, as a political necessity, and it is hard to see anyone objecting or being able to enforce legally a contrary position.

The National Platform EU Research and Information Centre
24 Crawford Avenue, Dublin 9, Ireland
Tel. 00-353-1-8305792
Web-site: www.nationalplatform.org

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Irish Times article by British Conservative Shadow Foreign Secretary William Hague ... Saturday 26 July 2008:

William Hague

The result of the Irish people's verdict on the Lisbon Treaty is still reverberating across Europe - and how could it not? With people in every other European country denied any direct say on the treaty, Irish voters had to speak for every European.

The hope that they would give voice to concerns held across the Continent was felt acutely on the other side of the Irish Sea, where in a breach of an election manifesto promise, the Labour government has denied British voters any say on the Lisbon Treaty at all, either in a referendum or at a general election.

The Irish people not only spoke for those who were not given a voice; they also spoke with courage. It was no surprise to Ireland's well-wishers that threats that Ireland would suffer should the"wrong" answer be given were counterproductive, but it is shocking that in today's Europe senior figures in European governments should seek to influence another nation's democratic decision with bullying language.

It is now incumbent on politicians across Europe to appreciate the meaning of Ireland's vote and to absorb its lessons. The Irish public has, if anything, been inundated with commentary from those outside Ireland who were unhappy at the result. Now that Irish voters have made their choice, it may also be useful if if those outside Ireland who thought the Irish people came to the right decision were to set out their understanding of what has happened and made some suggestions for what Europe should do next. This is one attempt to do that.

First, it is clear that Ireland's No was not a No to Europe, any more than the French and Dutch rejections were; it was a pro-European No. There is no evidence that this vote represented a rejection of the EU or its ideals: a continent united in peace and co-operation.

Second, it has been claimed that the No was simply the result of an inexpert public's inability to see throrugh the treaty's complex legal language to the shining merits of its content.

That so many among Europe's poltical elites' first response has been to dismiss the referendum result as an outrage from a country supposedly ungrateful to its Brussels benefactors and whose voters' decision must shortly be reversed is deeply troubling. It is an extremely patronising view.

Nor does it strike me as a healthy democratic reaction. When voters reject a cherished proposal it is wiser for politicians to ask, not "why have the people got it so wrong", but "how have we got it wrong". If the argument is that treaties are too complicated for voters - in other words that referendums on EU treaties are only justified if the voters say Yes - one might as well argue against elections on the grounds that most voters aren't experts on tax law or the finer points of education policy.

Neither is blaming Lisbon's failure on popular incomprehension a strong point for the treaty's supporters. How good can a treaty be if, after months of national debate, its merits cannot be comprehensibly explained? Would any of us in our normal lives sign up to a document we did not nderstand?

Third, it is apparent that a vast number of people in Ireland, as in many other European countries, do not want the extension of EU power and the weakening of individual countries' voices in Europe, like that of Ireland.

Lisbon would mean exactly that, whether it is the bigger role for the EU in defence, including a mutual defence commitment, its new powers over foreign policy or Ireland's smaller voting share and loss of a guaranteed EU commissioner. On that point it is worth noting that the current treaties require unanimous agreement for any new arrangement on the number of EU commissioners. So talk of Ireland automatically losing a commissioner unless Lisbon goes through is wildly misplaced.

It is equally true that the majority of Irish voters are not alone in rejecting a more federal future for Europe. In Lisbon's earlier guise as the EU constitution it was rejected by the French and Dutch. Polls showed that voters in up to 16 EU member states would have rejected Lisbon had they been given the chance to vote.

This leaves us with the question: what next?

Of course, the straight and simple answer is that No means just that. The EU is a union of democratic sovereign nation states and if the electorate of one EU country rejects a treaty then that should be that. It is a matter for the Irish government whether the Irish people are asked to vote again, and it is a matter for the Irish people what their response to such a move should be. No outsider has any right to tell the Irish how to handle the matter. That being the case, there must be no question of any punishment of Ireland.

Moroever, the rejection of Lisbon does not actually present any real problem for the EU. Contrary to all the froth about an enlarged Europe's desperate need for the EU constitution/Lisbon Treaty to work efficiently, the quiet truth is that the EU is in fact working perfectly well under the current treaties.

Meanwhile, it is looking increasingly likely that at the next British general election, now less than two years away, the British people will choose a new government. If Lisbon remains unratfiied by all EU members states, a Conservative government will put Britain's ratification of the treaty on ice and hold a referendum, recommending a No vote to a document we believe represents an outdated centralising approach to the EU. So the chances are growing that Ireland's voters will not be alone in saying No to Lisbon for long.

William Hague is a former British cabinet minister, who later led the Conservative Party from 1997 to 2001. He is currently Shadow Foreign Secretary.

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