The Referendum Commission’s Failure to do its proper job on Lisbon *

The National Platform EU Research and Information Centre
03.09.2009
By Anthony Coughlan, Director (President, Foundation for EU Democracy, Brussels)

The statutory function of the Referendum Commission under the 1998 Referendum Act is
to draw up and disseminate to voters  “a statement or statements containing a general explanation of the subject matter of the referendum (viz. the proposal to amend the Constitution) and of the text thereof in the relevant Bill . . .”

The first three  sentences of the proposed Lisbon Constitutional Amendment:

Sentence 1: Ireland affirms its commitment to the European Union within which the Member States of that Union work together to promote peace, shared values and the well-being of their peoples.

Sentence 2: The State may ratify the Treaty of Lisbon signed at Lisbon on the 13th day of December 2007, and  may be a  member of the European Union established by virtue of that Treaty.

Sentence 3: No provision of this Constitution invalidates  laws enacted, acts done or measures adopted by the State Š that are necessitated by the obligations of  membership of the European Union or prevents laws enacted, acts done or measures adopted by the said European Union or institutions thereof or bodies competent under the treaties referred  to in this section, from having the force of law in the State” (emphasis added)

The Lisbon Treaty - Your Guide  is  the booklet envisaged for all voters in accordance with the Referendum Commission’s statutory remit - and not the longer Extended Guide, which is to be obtained from Post Offices, Libraries, Garda stations etc. By no stretch of the imagination can this booklet be seen as fulfilling the statutory obligation of the Commission as set out in the excerpt from the Referendum Act quoted above.

Only half of the booklet, three pages, is devoted to some of the changes that would be made by the Lisbon Treaty, while the remaining three pages are given over to the Government’s “assurances”, even though they form no part of the Treaty.

The booklet makes absolutely no attempt to inform people how the Irish Constitution would be affected by the proposed Constitutional Amendment, as is required by the terms of the Referendum Act: 

For example, that Lisbon would establish a constitutionally new European Union, with its own legal personality, which  would be separate from and superior to its Member States  for the first time, as is evident from the second and third sentences of the proposed Amendment above;   that this post-Lisbon Union would replace the existing European Community which Ireland joined in 1973 and which would go out of legal existence; that this post-Lisbon EU would make well over half our laws each year, would sign Treaties with other States in all areas of its powers, would have its own diplomatic service and voice at the United Nations and conduct itself as a State in the international community of States etc.

There is no  attempt to tell people that they would be given a real “additional” citizenship of this Federal State-like entity, on  top of their national citizenship, instead of the purely symbolical and notional EU “citizenship” of today, which is stated under the current Treaties to be “complementary” to national citizenship - a legally meaningless term.  Being given an “additional” citizenship  is no small matter, for one can only be a citizen of a State and all States must have citizens Š Or that  this citizenship  would entail EU citizens’ rights and duties vis-a-vis the post-Lisbon European Union, which would be superior to one’s rights and duties as an Irish citizen in any case of conflict  between the two, with the many implications of such a major constitutional change.

The EU Commission, page 2: “If the Lisbon Treaty is in force each member state, including Ireland, will continue to nominate a Commissioner”. The inference is that the process of “nominating” a Commissioner before and after Lisbon would be the same, whereas the Commission is well aware of  the great difference, its attention having been drawn to it in private correspondence.  At present each Member State  can decide (viz. “propose”)  who its national Commissioner will be, whereas post-Lisbon the incoming Commission  President would decide on the basis of the “suggestions”  of the Member States, in interaction with the Big States who will have the decisive say in his or her own appointment because of their population size.  By means of this one-word amendment made by Lisbon, a bottom-up process of appointment of  EU Commissioners would be replaced by a top-down one, so that in the  post-Lisbon  Union it would be Chancellor Merkel, President Sarkozy and Gordon Brown who would decide who Ireland’s Commissioner would be, not the Irish Government.

The Council of Ministers, page 3:   There is no indication  in the “Your Guide” booklet that a double majority is required for European laws today: namely,  half the States + a qualified majority of weighted  votes. This would be replaced by a straight population count for EU law-making under Lisbon, just as in a single State.  The booklet gives no indication that Germany would more than double its voting weight under Lisbon’s population-size criterion, that France, Britain and Italy would go from their present 8% each to 12% each and that Ireland’s vote would go from its present 2% of the total to 0.8%.   Instead of the four Big States having four times Ireland’s vote as at present - viz. 29 votes each to 7 - Germany would  effectively have 20 times Ireland’s vote in a post-Lisbon  European Union (80 million people as against 4 million) and  France, Britain  and  Italy would have 15 times each.

The European Parliament:
The Constitutional change to be brought about by Lisbon is illustrated clearly by the change in the status of MEPs before and after.   Under the present Treaties MEPs are “representatives of the peoples of the States brought together in the Community “(Art.189 TEC). The Lisbon Treaty would change them into “representatives of the Union’s citizens” (Art.14.2, amended TEU).  This illustrates clearly the constitutional shift which the Lisbon Treaty would make from the present European Union of national States and peoples to the new Federal Union of European citizens and their national states - the latter being henceforth reduced constitutionally and politically to effective provincial or regional status within the new post-Lisbon Union.

False characterization of the Government’s “assurances” Š”an international  agreement that binds the member states” (Your Guiide p.6) . .   an international treaty, while binding on the parties who have signed it, does not have an enforcement  mechanism” (The Lisbon Treaty - Your Extended Guide, p.23)

But the Conclusions and Decision /Declaration of the European Council were not “signed” by the EU Prime Minsiters and Presidents individually, so far as we know. They did not conclude an international Treaty binding on their States.  The Decision/Declaration is an interpretative agreement between a group of senior politicians, not a Treaty between  States.  If it were the latter it would  have to be ratified by each of these States’ national Parliaments etc., but that is not happening.  David Cameron is not going to be bound by Gordon Brown’s agreeing to the Irish “assurances” in the EU June 2009 summit conclusions, even if that is envisaged as being registered at the UN at some date in the future.  A future Protocol is promised -  not several Protocols, as the Referendum Commission seems to think (see p.3 of the Extended Guide),  but the Decision/Declaration  states that “The Protocol  will clarify but not change either the content or the application of the Treaty of Lisbon.” All it would do would be to state that it makes no change in the Treaties, so that as a Protocol it would be really redundant, giving carte blance to the Court of Justice to decide as if it were not there - the ECJ  being  the only body empowered  under the treaties to interpret them (Art. 344 TFEU).

Conclusion:  The Referendum Commission’s  booklet, The Lisbon Treaty -Your Guide,  is a complete failure  in terms of the Commission’s  statutory function of drawing up and disseminating a statement “containing a general explanation of the subject matter of the referendum (viz. the  proposal to amend the Constitution) and of the text thereof in the relevant Bill . . .”

The Commission’s statement maks no reference whatever to the constitutional revolution which would be brought about by the Treaty of Lisbon - which is, after all,  the 2004 EU Constitution for  Europe in revamped form. It omits reference to some of the  most important constitutional changes the Treaty would bring about for Irish citizens.  Virtually every sentence of the “Your Guide” is slanted towards  saecuring  a Yes vote.   Mr Justice Frank Clarke’s statement in his Introduction to the longer version, the Extended Guide (p.1),  that “It is required by  law to be impartial and factual, and that is what it is”,   is a false claim, belied by the booklet’s misleadingly selective choice of facts and significant omissions. The  booklet is a disgrace to those responsible for it and should be withdrawn in the public interest as likely to mislead and deceive voters on what they will be voting on in a month’s time.

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