LISBON TREATY. It's not over yet!
Two reports on the Lisbon Treaty, by Joe Noonan–
[Joe Noonan is a partner in Noonan Linehan Carroll Coffey, Solicitors, Cork. He was an expert witness on foreign and security policy in the landmark Crotty case (1987) in which the Supreme Court decided that the Single European Act should be put to the Irish people by way of referendum. The Crotty judgement is the reason Ireland held a referendum on the Lisbon treaty on June 12th. By a margin of 53.4 to 46.6 % voters rejected a proposal to allow the government to amend the Constitution to enable Ireland to ratify the treaty]
1. LIFE AFTER LISBON : SOVEREIGNTY & JUSTICE
2. Ireland says No to the Lisbon Treaty
NOTE: Patricia McKenna (former MEP Ireland South) advocated a "NO" vote on the Lisbon Treaty, because it calls for Ireland's participation in the development of a EU War Industry. Listen to her Audio report here:
A brief excerpt from her concluding statements – "...denying people the right to even get information on what this treaty (Lisbon Treaty) is about. The former Italian PM Amato said the EU leaders decided that the document should be unreadable. If it is unreadable, it is not constitutional. ...nothing will be directly produced by the PMs because they feel safer with the unreadable thing. They can present it better in order to avoid dangerous referendums. If people understood what was going on they would ask for a referendum. (Former French President) Giscard d'Estaing, who was basically the author of the whole thing said, "Public opinion will be led to adopt, without knowing it, proposals that we dare not present to them directly." and he stressed, "All the earlier proposals will be in the new text but will be hidden and disguised in some way." and he also noted, "What was already difficult to understand will become utterly incomprehensible but the substance has been retained." So, that is the contempt that the EU leaders show for the people of Europe, and I think that this is something we have to get across to everybody. It's absolutely unacceptable."
LIFE AFTER LISBON : SOVEREIGNTY & JUSTICE
by Joe Noonan Solicitor
Delivered at the HUMBERT SUMMER SCHOOL
23 August 2008
‘Spin reinforced a vicious circle of suspicion in politics, while a calculating politician, a cynical media and a distrusting public reinforced one another to hollow out the national conversation.’ Alpha Dogs by James Harding
We are in a very serious situation. 160 of our 166 TD’s urged us to vote Yes. Some were more vocal in their urgings than others. Six TD’s recommended a No vote. 862,415 people voted No and 752,451 voted Yes. The importance of the Lisbon Treaty was initially downplayed. The Minister for Foreign Affairs described the changes under the Treaty as ‘minuscule’. The reality of course is far different. The changes are significant far-reaching and in many respects unclear in their implications long-term. There is no doubt that the Treaty was a big deal.
Therefore the rejection by the people of the recommendation of the Government and largest opposition parties can fairly be described as a vote of No confidence in those parties on an issue of vital national importance. It is not unreasonable to suggest that the proper course of action in these circumstances would be to have general election so that the breakdown in trust between the electorate and the elected representatives could be assuaged.
Of course we are not going to have a general election however merited in principle it would be. Instead what appears to be happening is that our Government is engaged in feverish furtive attempts to bypass or reverse the effect of the sovereign decision of the people. I will say a little bit about the particular strategems later.
To begin lets briefly recall some salient facts.
The Treaty of Lisbon was a major document in every sense. We are told it was the product of seven years’ negotiations. If so then the negotiations may have overlooked the small matter of bringing the people along with the process. As Oscar Wilde said ‘to lose one parent may be regarded as a misfortune; but to lose both looks like carelessness’. The product of these years of negotiations whether in the form of the Constitutional Treaty or the Lisbon Treaty has now been rejected by the electorate in no fewer than three countries, France, the Netherlands and Ireland. It is commonly recognised that it would be rejected in many others if the opportunity was given to their electorates to vote on it.
‘The most striking change [between the Lisbon Treaty and Constitutional Treaty] is perhaps that in order to enable some governments to reassure their electorates that the changes will have no constitutional implications, the idea of a new and simpler treaty containing all the provisions governing the Union has now been dropped in favour of a huge series of individual amendments to two existing treaties. Virtual incomprehensibility has thus replaced simplicity as the key approach to EU reform. As for the changes now proposed to be made to the Constitutional Treaty, most are presentational changes that have no practical effect. They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum’. Garrent FitzGerald Irish Times 30 June 2007
I respectfully agree with Dr FitzGerald’s view although of course I disagreed with his recommendation to vote Yes.
A remarkable feature of the Lisbon campaign and one that received little attention, was the mulish refusal of Government to refuse to tell the electorate why a referendum was necessary. In other words what was it that Lisbon would change in our Constitution that required us to ratify it by way of a constitutional amendment. The Government had advice on this precise point from the Attorney General but refused to divulge it to the public who had paid for it. The public was instead presented with a deliberately cynical strategy which the Government wrongly thought would stampede people into voting Yes in sufficient numbers. That strategy, as well including the withholding of essential basic information about why we were asked to vote on this, also included withholding final confirmation that there would in fact be a vote by way of referendum until shortly before the Referendum Bill was put through the Dail. While people assumed they would have a vote, if you look closely at the official position you will see that this was never confirmed until very late in the day and as I say, this was then done without explaining to people why a referendum was necessary.
We had the astonishing report (leaked through the British Foreign Office) of discussions between our Department of Foreign Affairs and the British Foreign Service about elements of this strategy which were very disturbing. The overall picture was one of a Government ganging up with other interests against its own people. The situation was truly shocking.
People are not naïve and the Irish electorate is one of the most sophisticated in Europe. They saw what was going on and they knew that it was wrong and they voted accordingly.
They did this after a campaign in which the Government failed completely to give any reasoned justification for a Yes vote and confined itself to personalised vicious attacks on anyone who dared to put their head above the parapet and call for a No. Dissent was not to be tolerated. It was to be rendered unthinkable. Apart from abuse, the other tack taken by the Government came in the form of vague platitudes to the effect that we needed to ‘remain at the heart of Europe’ where we ‘punch above our weight’ whatever that may mean.
Well we all now know the outcome. In Mayo 18,624 voted Yes and 30,001 voted No. In every part of the country, urban, rural, North, South, East and West people turned out to vote this Treaty down in unprecedented numbers.
We joined the people of France and the Netherlands in having expressed our view on the Lisbon type formula which sees greater centralisation of power in the EU and in the hands of the individual Ministers of Government who make up the Council of Ministers.
The promoters of the Treaty do not like being opposed and moves are now afoot to overcome the irritation of our No vote.
The proud Scot Sean Connery in his book ‘Being a Scot’ recalls how the first big break in his life came when he was five years old. He says he did not realise it for another 70 years. Age five was when he learned to read. Reading the Lisbon Treaty was something we were told we did not need to do. We simple needed to trust the judgement of our betters and do as we were told. That is never a wise course of action particularly when our betters are seeking to improve their powers and job prospects at our expense. Mr Cowen and Mr McCreevy could have saved themselves some embarrassment had they learned the lesson so eloquently expressed by Sean Connery on the wisdom of reading.
I work as a solicitor concentrating currently in the areas of environmental and planning law. These are areas of practice that have significant European law components. One of the basic needs in any civilised society is an effective system of access to justice. Without that the powerful can trample on the powerless with impunity. Traditionally the Irish legal system has striven to ensure that access to justice is as widely available as possible. In part access depends on formal rights such as the standing to bring a court case and availability of legal aid. Equally it depends on more intangible factors such as the availability of a body of lawyers equipped to argue cases competently across a broad range of areas. The issues of access to justice are problematic at EU level for reasons that are clear enough once we look at the history of the EEC.
Initially established to serve an organisation dealing primarily with trade and market issues the European Court of Justice had a limited remit. although it had a vocational role in enlarging its scope and powers, and those of the communities it was set up to serve. The ECJ’s role was to resolve rows between the EC’s institutions and member states. Big corporations which were directly affected by Community decisions also had a right of access to the ECJ. However, the access of individual citizens to the ECJ in general depends on the grace and favour of our Supreme Court to refer a case to the ECJ, or on a decision by the Commission to act on a complaint.
In the early stages, it may have been appropriate for individuals effectively to have been shut out from having any right of access to the ECJ. As time goes on and the role of the European Community and the Union and the ECJ expands, this exclusion of people from direct access to justice is indefensible. The informal complementary problem has also become more severe, namely the difficulty in finding accessible affordable legal advice from people equipped to give that advice in areas involving the interplay of European and Irish law. Compartmentalisation and specialisation are accompanied by increasing remoteness from people. The Lisbon Treaty by expanding further the areas of competence of the EU and ECJ would have compounded these problems but even without the Treaty, these remain real problems in need of urgent attention.
The Government is now attempting somewhat desperately to find a way out of its proper role which would be to effectively represent the people and to do so by respecting and vindicating the decision to reject the Lisbon Treaty.
The British Foreign Secretary made it clear before the summit which followed the No vote that Brian Cowen had the right to bury the Lisbon Treaty. Mr Cowen chose not to do so and instead appears to have been put into a position of adversary to his own people. The current straws in the wind indicate that there are two possible avenues being explored by Government and its acolytes to bend us to their will.
One is the suggestion that the Treaty really did not need a referendum at all and that therefore it will be possible to ratify it by resolution by the Dáil and Seanad.
We had a referendum because it was necessary legally to have referendum. It was not held as an optional extra. While it would have been courteous to the electorate to explain why it was necessary and to publish the Attorney General’s advice in that regard, failure to do so does not change that essential fact. By the same token, attempting or purporting to ratify the Lisbon Treaty by the Oireachtas would be illegitimate and would precipitate a constitutional crisis. The fact that normally serious commentators have actively promoted this idea does them no credit. If the Government attempt this they can expect trouble.
The second method under consideration is simple rejection of the validity of the No decision by ignoring it and asking us to try again. As a fig leaf there is a talk of declarations being somehow tacked onto the Treaty as if these would have any meaningful effect in law. Of course they would not. Declarations are of no legal significance when it comes to Treaties of this kind. They are not part of the Treaty and they do not affect its content or interpretation by the European Court. That is what differentiates them from the text of the Treaty itself or Protocols appended to the Treaty which do have those effects. Presenting the Lisbon Treaty with as many declarations as they like is, in legal terms, simply asking us to vote again on the same legal document. The Government has the capacity to do this in that they control the legislature and can pass as many referendum bills as they like. That does not make it legitimate to do so. In fact it would be an unprecedented breach of faith with the citizens of a most egregious nature.
The EU/EC has many virtues and many failings. Like any organisation there are people involved at its core who spend much mental energy devising ways to aggrandise their positions and enhance their influence. Lisbon is part of that process and it has been soundly thrashed now three times. The EEC/EU is beginning to resemble a multinational HSE, a body stuck in perpetual efforts to restructure itself instead of concentrating on the job it is paid to do. This must stop. It is time to get back to work.
If a case for sensible constructive change exists and can be shown to exist then let us hear it. We have not heard it so far. Meanwhile let’s have some respect for the people of Europe in whose decisions commonsense and wisdom reside.
The dilemma facing Europe is not an Irish dilemma. It is a European wide dilemma of constitutional legitimacy. We are told that we gain by pooling our sovereignty in the EEC. No doubt there is truth in that. However, sovereignty must be accompanied at all stages with its partner justice. ‘Without Justice’ St Augustine asked ‘what is Sovereignty but organised robbery?’
Thanks to our Irish constitution, born of our historical experience which gives the right to individuals to restrain efforts by elected representatives to abuse their powers, or to enlarge those powers or give them away, Irish people had the opportunity to vote on the Treaty. Deliberate obfuscation as Garret FitzGerald described, succeeded in depriving other European citizens of that opportunity. This is all the more ironic when we read the fine words in Lisbon:
‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’ (Article 8.A.3 Treaty of European Union as it would have been amended by the Treaty of Lisbon).
Ireland has preserved for the European Community and Union the opportunity now to come to its senses. It is time to address the practical problems that need to be faced in a way that will ensure the organisation’s survival into the future.
2. Ireland says No to the Lisbon Treaty
Ireland says No to the Lisbon Treaty
By Joe Noonan.
Leonard Cohen, the Canadian poet and songwriter, drew cheers from his Dublin concert audience a few days after the No vote: As we saw from the vote last week, Ireland continues to bewilder the world as you shape your destiny in this vale of tears. And at the risk of offending any atheists in the audience, God bless you.
Other comments from government circles in Paris and Berlin were in some cases frankly dismissive of the result. The Irish vote would be ‘respected’ but that word appeared to take on new meaning in this context, closer to the term ‘temporarily tolerated’. The Irish would have to vote again and come up with a more acceptable result next time.
Subsequent events in Poland and the Czech Republic, as well as the agreement by the German government to defer further ratification steps pending the outcome of a challenge in the Federal Constitutional Court suggest that the Irish No was merely one expression of a wider concern – that the Lisbon prescription may not be universally welcome after all.
The cliché that there is a ‘disconnect’ between the national political leadership and the citizens in Ireland is now heard increasingly in other member states of the Community. That term is shorthand for what Dr Roman Herzog, former President of Germany and former President of the Federal Constitutional Court, described in this way –
" 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 a non-transparent, 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."
[Dr Roman Herzog, former President of Germany and former President of the German Constitutional Court, writing on the EU Constitutional Treaty, Welt Am Sonntag, 14 January 2007]
Dr Herzog wrote of ‘an ever greater, inappropriate centralisation of powers away from the Member States and towards the EU’. The Irish No vote had many strands but it is fair to say that this was one of them. While a number of specific concerns – taxation, defence, social policy, voting power - were mentioned by various interest groups the underlying theme was a sense of unease about further power slipping away.
The Treaty of Lisbon cannot come into effect unless it is ratified by all 27 member states. All member states agreed that ratification was a matter for each state to pursue in accordance with its own domestic constitutional requirements. In the case of Ireland, that was by way of an amendment to the Constitution which in turn requires the consent of the public by way of referendum. From an Irish lawyer’s perspective, the suggestion that the Irish No vote was somehow unacceptable, is therefore challenging. It will be for Irish politicians to address that challenge in the coming months.
The Irish government is now retaining pollsters to undertake a survey to help it ‘understand the voters’ attitudes’. That tactic smacks more of a Marketing Department trying to find ways of persuading consumers to switch from Coke to Pepsi rather than a government in a parliamentary democracy seeking to implement a clear national mandate.
Law is ultimately about power and how it is to be exercised. The Lisbon treaty is about the redistribution of power between citizens and their governments, between big and small states in the EU, and between the member states and the EU itself. The re-ordering of those complex power relationships can only succeed in the long term if there is a minimum level of popular support across the member states. Governmental support alone is not sufficient. The Irish No has brought to the surface the possibility that EU governments may have to revisit the Lisbon treaty and its vision of the EU in order to win that necessary support.