Submission To Govt On Ireland’s Future In The European Union *
The National Platform EU Research and Information Centre
by Anthony Coughlan - Secretary
What the Irish Government should now do on the Lisbon Constitution:
Submission to the Oireachtas Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre
(N.B. The four numbered headings below correspond to the four points of the Oireachtas Committee’s terms of reference)
1. The challenges facing Ireland following the Lisbon Treaty referendum result:
By voting No to the Lisbon Treaty on 12 June 2008 the majority of Irish voters rejected the proposal that they should change the Irish Constitution to allow the abolition of the present European Union and European Community which were established by the the 1992 Treaty of Maastricht, as amended, and their replacement by a legally new European Union, separate from and superior to its Member States, which would be established by the Lisbon Treaty, whose laws, acts and measures would thereafter have the force of law in the State.
The Irish people thereby rejected the attempt to establish a European Union which would have the constitutional form of a supranational Federation, of which they would be made real citizens for the first time, just as the peoples of France and the Netherlands rejected a similar proposition when they voted No to the Treaty Establishing a Constitution for Europe in 2005.
Irish referendums are a form of direct legislation by the people
Irish referendums are a form of direct legislation in which the Irish people, who adopted their basic law or Constitution by direct referendum vote in 1937, decide to legislate or not to amend that Constitution in subsequent referendums thereafter. Last June’s referendum vote was a clear refusal by the people to assent to the constitutional revolution which had been presented to them for decision by the Government and Oireachtas in the 28th Amendment of the Constitution Bill, 2008.
Article 6 of the Constitution states that it is the right of the Irish people “in final appeal, to decide all questions of national policy.” The matter at issue in the Lisbon Treaty vote was not just a question of national policy; it proposed to alter the fundamentals of the Constitution itself, as the Constitition of a sovereign State, by turning the Republic of Ireland into a constituent element of a supranational European Federation, a political Union which went far beyond the primarily economic European Community and European Union that Ireland is at present a member of.
The Irish people decided to reject Lisbon by clear majority vote. All Yes-side voters who are democrats should respect that vote and abide by it. Any attempt to put the same Lisbon Treaty to the Irish people again with a view to reversing last June’s vote would almost certainly be in violation of Article 6 of the Constitution and would be open to consitutional challenge in the Courts.
“Respecting” the voters’ decision means abiding by it, not working to overturn it
Although the Government says that it respects the voters’ decision, which means that it should abide by it, all the signs are that Taoiseach Mr Brian Cowen and his colleagues, from the moment the trend of the ballot papers was evident at the referendum count, have set out to work with other EU Governments to overturn this democratic result in a second Lisbon referendum, just as occurred when voters rejected the Treaty of Nice in June 2001.
If Taoiseach Mr Brian Cowen and his colleagues had really respected the voters’ decision, they would have said to their EU colleagues that Ireland could not and would not ratify the Lisbon Treaty in view of the referendum vote. Further ratifications by other EU States would therefore have been pointless, as the Treaty can come into force only if all 27 signatory States ratify it, and there would have been no point in other Member States going ahead with ratifying the Treaty in the light of such a decision by Ireland.
This is what British Foreign Secretary David Milliband was referring to when he said on the day after the Irish vote that the future of the Lisbon Teaty was in the hands of Irish Taoiseach Brian Cowen.
At lunchtime on the day of the referendum count, while the ballots were still being sorted although their trend was clear, Foreign Minister Micheal Martin stated on RTE that “of course the ratifications by other countries will continue.” He would not have said this without the agreement of the Taoiseach. That same morning Commission President Barroso spoke privately with the Taoiseach on the phone, after which he said that ratifications by the other EU States would continue despite the Irish vote. This presumably reflected assurances which the Taoiseach gave him that the No vote last June did not mean that Ireland would not be ratifying Lisbon.
So while the Taoiseach, Foreign Minister Martin and other Government Ministers vehemently protest that they “respect” the people’s vote, they simultaneously refuse to accept the decision of the voters by telling their EU colleagues that Ireland would not therefore be ratifying the Lisbon Treaty. They have thereby encouraged the other EU States to continue with their ratifications on the assumption that the Irish Government and Oireachtas would induce Irish voters to reverse their 12 June vote and ratify the Treaty in a second referendum, as occurred previously with the Nice Treaty.
This is not “respect” by Government Ministers for the decision of the voters. It is rather total disrepect. It amounts in effect to the Irish Government aligning itself with the governments of other EU countries, and in particular those countries that are most committed to the Lisbon Treaty - Germany and France - and the Brussels Commission, against its own people in an attempt to bring about the constitutional revolution embodied in Lisbon, a revolution which would destroy their people’s national democracy and independence as citizens of a sovereign State.
A dilemma of the Government’s own making
If Taoiseach Brian Cowen and his colleagues find themselves next month to be the government of one of only a handful of EU Member States that have not ratified Lisbon, this will be entirely due to the unwillingness of the Taoiseach and his Government to respect the Irish people’s referendum vote on Lisbon. It will be due to their de facto efforts to reverse that result in concert with President Sarkozy, Chancellor Merkel, Commission President Barroso and others. This is truly a constitutionally awesome course for any Irish Government to take.
The suggestion that the other EU Member States are unwilling to open issues of concern in the Lisbon Treaty, or to “re-negotiate” its contents, is a spurious one, for the Treaty cannot come into force without Ireland ratifying it. If Ireland does not ratify, the Treaty falls. All the issues of the Treaty’s contents would still remain in play however, to be dealt with in the normal toing-and-froing of EU politics over the years or in further EU treaties at some future date.
The Lisbon Treaty and the EU Constitution which it embodies is a bad treaty for Ireland and for the EU, for the reasons publicly canvassed with voters in last June’s referendum and which were set our in our preliminary submission to the Oireachtas Sub-Committee of 22 October (see below).
By refusing to ratify the Lisbon Constitution Ireland is also upholding its rejection by the peoples of France and the Netherlands, founder members of the original EEC - for the content of Lisbon is 96% the same as the original constitutional treaty that they voted No to. By rejecting Lisbon and by standing by that rejection, Ireland is also upholding the existing European Union and European Community founded on the 1992 Maastricht Treaty as amended. It is refusing to allow the Prime Ministers and Presidents of the majority of EU countries to foist on the peoples of Europe a new and profoundly undemocratic European Union, in the constitutional form of a Federation, when opinion polls show that the peoples of most Member States do not want this and would reject it if they were given the opportunity of voting on it.
That this would be the case was admitted by French President Sarkozy when he stated at a meeting of group leaders in the European Parliament last year that “France was just ahead of all the other countries in voting No. It would happen in all Member States if they have a referendum. There is a cleavage between people and governments … A referendum now would bring Europe into danger. There will be no Treaty if we had a referendum in France, which would again be followed by a referendum in the UK.” (EUobserver , 14 November 2007)
The EU Prime Ministers and Presidents act against their own peoples
That is the reason why the Prime Ministers and Presidents of the EU Member States gave a commitment to one another when they signed the Lisbon Constitution to avoid referendums on it at all costs. It is why the French and Dutch Governments refused to hold referendums on Lisbon even though it was virtually identical with the constitutional treaty their peoples had voted No to in 2005. It is why British Prime Minister Gordon Brown abandoned his Labour Party’s commitment, and his predecessor’s promise, to hold a referendum on an EU constitution in the UK. It is why the Danish Government is avoiding a referendum in Denmark even though referendums on major EU treaties have traditionally been required there.
A radically altered EU built on such undemocratic foundations would be inherently unstable and unable to endure. That is why Ireland would be upholding the best ideals of the European project by resisting the pressures from the bigger EU States to re-run the Lisbon Treaty referendum with a view to reversing the majority decision of Irish voters last summer.
By resisting such pressures Ireland would simultaneously be upholding the wishes of the majority of Europe’s peoples for a more democratic, less centralised and more transparent EU, where decisions for some 500 million people would not be taken by tiny numbers of people, in the European Commission, Council of Ministers and Court of Justice, bodies that are irremoveable as collectivities and whose members are safeguarded from intervention by the voters.
Ireland would thereby be forcing a return to the principles of the 2001 Laeken Declaration which recognised the democratic deficiencies of the present EU, before the process of reform was hijacked by the Euro-federalists who drew up the EU Constitution in an attempt to foist on us a European Union that would be profoundly more undemocratic and less responsive to voters than the EU we have today.
What the Irish Government should now do on Lisbon
To meet the challenges facing Ireland in the EU following the Lisbon referendum therefore, the Irish Government should do the following: -
a) Abide by the voters’ decision of last June in reality rather than in pretence, and inform the other EU States that Ireland will not be ratifying the Lisbon Treaty in its own interests and those of the EU as a whole;
b) Point out forcefully to its fellow EU governments that the rejection of the EU Constitution and the Federalist EU that it embodies by the peoples of France, the Netherlands and Ireland - and its likely rejection in several other countries if their peoples were allowed a vote on it - shows that Lisbon is a bad treaty for the EU as a whole, and that the EU leaders should therefore begin a process of consultation with their citizens on the kind of Europe their peoples really want, and that they should go back to the principles of the Laeken Declaration as a guide to this;
c) Point out to its EU fellow governments that the British Conservative Party is committed to putting Britain’s ratification of Lisbon “on ice” in the event of that party being elected to office before that Treaty is ratified, holding a UK-wide referendum on it and recommending a No vote to it, and that it would therefore be prudent of the EU as a whole to await the outcome of the UK general election, which is due in little over a year, before trying to foist an unwanted Lisbon Constitution on the peoples of the UK. The Government should point out that such a referendum would also give our fellow-countrymen and women in Northern Ireland an opportunity to express their views on this hugely important treaty; d) Recommend to its fellow EU governments that it would be prudent also to await the outcome of the Czech Constitutional Court and Senate proceedings, and the Grauweiler constitutional challenge to Lisbon before the German Constitutional Court, before doing anything further in this matter;
e) If, as seems to be the case, there is now general consensus among the EU Prime Ministers and Presidents that it is not politically practical, under either Nice or Lisbon, to take away from each Member State their right to have one of their nationals on the Commission, the Government should propose that the most effective way of achieving this while abiding by the provisions of the Nice Treaty, would be to have 26 instead of 27 Commissioners, with a place and voice on the Commission to be given to the High Representative for Foreign and Security Policy, instead of having a formal Commissioner from the country whose national holds this office.
2. Ireland’s future in the EU… Our influence within the European institutions:
Ireland should remain a fully committed member of the present European Commmunity and European Union. At the same time the Government should advocate a genuine democratic reform programme for the EU, following debate and discussion with its own citizens and with other EU States, especially smaller ones, in the process of consulation suggested in Point (b) above.
Advance a programme of democratic reform of the EU
Such a process of genuine EU democratic reform could include, inter ali a: (i) the election of Commissioners from each Member State, with the Commission’s legislative programme being presented beforehand to National Parliaments each year; (ii) changing the Council of Ministers voting system so that European laws could be adopted only if at least three-quarters of Member States covering at least half of the EU’s population were in favour; (iii) abandoning the idea of a special code of fundamental rights for EU citizens as distinct from national citizens and requiring the EU institutions to abide instead by the European Convention of Human Rights; (iv) reducing drastically the burden of EU laws and repatriating appropriate law-making areas from Brussels to the Member States as envisaged in the Laeken Declaration.
Ireland’s influence in the EU institutions would be drastically reduced by the provision of the Lisbon Treaty which would take away from EU Member States the right to “propose” and decide who its national Commissioner was, and replace that by the right to make “suggestions” only for the incoming Commission President to decide. Ireland’s influence would also be drastically reduced by the Treaty’s proposal to halve Ireland’s voting weight in EU law-making on the Council of Ministers from 2% to 0.8%, while Germany’s voting weight would simultaneously increase from 8% to 17%, France’s from 8% to 13% and Britain’s and Italy’s from 8% each to 12% each.
3. Enhancing the role of the Houses of the Oireachtas in EU affairs:
The flood of EC/EU legislation has these days become so great that two-thirds or more of all legal acts in EU Member States now emanate from Brussels. This means that national Parliamentary Scrutiny Committees can give an average of only a few minutes time, if that, to each European legal act. This means that most legal acts get little or no consideration or discussion at National Parliament level, not to mind amongst the general public. Important matters can go through without consideration or debate, whose adverse social consequences only show themselves later when damage may be done.
This is outrageous from the democratic point of view and gives rise to public hostility and cynicism regarding the whole process of European law-making. The only remedy would seem to be to institute fundamental democratic reforms in the EC/EU which would reduce the aforesaid flood of European laws. That in turn would require an EU Reform Treaty that is very different in character from the miscalled “Lisbon Reform Treaty”. The comments on this matter by Dr Roman Herzog, former President of Germany and former President of the German Constitutional Court, are relevant:
” It is true that we are experiencing an ever greater, inappropriate centralisation of powers away from the Member States and towards the EU. The German Ministry of Justice has compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004 with those adopted by the European Union in the same period. Results: 84 percent come from Brussels, with only 16 percent coming originally from Berlin … Against the fundamental principle of the separation of powers, the essential European legislative functions lie with the members of the executive … The figures stated by the German Ministry of Justice make it quite clear. By far the large majority of legislation valid in Germany is adopted by the German Government in the Council of Ministers, and not by the German Parliament … And so the question arises whether Germany can still be referred to unconditionally as a parliamentary democracy at all, because the separation of powers as a fundamental constituting principle of the constitutional order in Germany has been cancelled out for large sections of the legislation applying to this country … The proposed draft Constitution does not contain the possibility of restoring individual competencies to the national level as a centralisation brake. Instead, it counts on the same one-way street as before, heading towards ever greater centralisation … 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 an untransparent, 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.”
- Former German President Dr Roman Herzog and former president of the German Constitutional Court, article on the EU Constitution, Welt Am Sonntag , 14 January 2007
It is also desirable from the democratic standpoint that there should be national parliamentary input to the EU legislative process before Ministers go to Council of Ministers meetings in Brussels, so that they can be given guidance or even parliamentary policy mandates beforehand, at least on important matters. This would enable national parliamentarians to have some real input into the adoption of government policy-positions on EU matters before they come for decision on the Council of Ministers. This is allowed for in the Danish EU Parliamentary Scrutiny Committee. It is desirable in Ireland also, although Government Ministers and senior civil servants would very likely resist it.
4. Improving Irish public understanding of the EU?:
Public understanding of the EU and issues relating to it would be significantly advanced if Euro-federalists and advocates of EU political union and fuller European integration generally, did not resort so readily to abuse and misrepresentation of people who wish to defend national democracy and national independence in face of the pressures from EU integration to reduce or abandon these.
One egregious and topical example of the kind of misrepresentation that is so common has been the attempt by supporters of the Lisbon Treaty to make out that the threat of conscription into a future EU army was a key theme in No-side propaganda during last June’s Lisbon referendum.
Mr Tony Brown and Foreign Minister Micheal Martin “spinning” tales about conscription to a post-Lisbon EU army
The undersigned recalls that the first person to raise this scare was Mr Tony Brown in a letter to the Irish Times some months before the Lisbon referendum. In this letter Mr Brown condemned what he said were likely to be the exaggerations and false-claims of No-side people, as illustrated by their putting around this scare-story about conscription to an EU army in previous EU referendums. I was actively involved in all of these referendums and have no recollection of this theme being pushed by No-side advocates at any time in the past. I can say with absolute certitude that it was not made an issue in the Lisbon Treaty referendum by No-side campaigners either.
I was personally in touch with virtually all the No-side groups in the Lisbon referendum and saw most of the items of literature which they produced. None of them sought to make supposed conscription into an EU army an issue, nor do I recollect seeing any slogan or piece of No-side literature which made this particular point.
What did happen was that shortly before the referendum Foreign Minister Micheal Martin made a public statement on TV repeating Mr Tony Brown’s earlier statement about this obviously lurid allegation being an example of alleged No-side untruths and misleading propaganda. This immediately gave the statement metaphorical “legs”, as it were. People who did not know anything about an EU army - which is in fact envisaged in the Lisbon Treaty, titled “a common defence”, as distinct from “a mutual defence”, which is something the Treaty also envisages - may have said to themselves: perhaps there is something in this notion of conscription after all if the Foreign Minister is getting so hot and bothered about it!
It was undoubtedly primarily Yes-side people who were responsible for this nonsense, not the much-maligned, much-misrepresented and much insulted No-side proponents, whose genuine concerns about the Lisbon Constitution have been so contemptuously dismissed by so many Yes-side spokesmen. Many Yes-side spokesmen in Ireland have also done their best to create the impression abroad that Irish voters rejected the Lisbon Treaty because of fears about conscription to an EU army, which clearly were not in the treaty. They have thereby sought deliberately to misrepresent and denigrate the democratic vote of their fellow-countrymen.
The failure of the Referendum Commission to carry out its statutory duty
When it comes to advancing public understanding of the EU and EU Treaties, the Oireachtas Sub-Committee should also not ignore in its deliberations the failure amounting to constitutional delinquency of the supposely independent Referendum Commission.
The statutory Referendum Commission was given over ¤5 million of public money to carry out its function under the 1998 Referendum Act of explaining to voters the significance of the constitutional amendment they were voting on and its text, yet it significantly failed to do this, for otherwise the No vote would almost certainly have been higher.
What the Referendum Commission did do was to summarise and regurgitate much of the contents of the highly tendentious booklet on the so-called “Lisbon Reform Treaty” which was published by the Department of Foreign Affairs. This booklet purported to be a summary of the main provisions of Lisbon, but it completely failed to explain the significance of the constitutional amendment, why it was being proposed and why the Constitution had to be changed to permit Lisbon to come into force, and what the implications of adopting it would be. Yet this is what the 1998 Referendum Act required the Referendum Commission to do.
Thus the Commission failed to explain to citizens the first two key sentences of the proposed Constitutional Amendment set out in the 28th Amendment of the Constitution Bill. This made clear that the new European Union which would be established by the Lisbon Treaty would differ constitutionally in profoundly important ways from the present EU that is founded on the Maastricht Treaty. The Referendum Commission failed even to mention in its publicity material that Lisbon would abolish the European Communities which Ireland joined in 1973 and which are explicitly mentioned in the Constitution, so that it would leave the Atomic Energy Community (EURATOM) as the sole European community in being.
It failed to inform citizens that Lisbon proposed to take away from Member States the right to decide who their national commissioner would be in the ten years out of every 15 when Lisbon provides that they may have a fellow-national on the Commission. The Referendum Commission omitted many other key facts about the Treaty and the Constitutional Amendment in its publicity material. At the same time its chairman made two interventions in relation to disputed matters in the debate, something which had never been done by previous Commissions, in one of these interventions getting his facts clearly wrong.
The Referendum Commission, conflicts of interest and questionable tendering procedures
The Referendum Commission sought legal advice from solicitor firm A and L Goodbody, although this firm represented some Yes-side interests. It relied on Murray Consultants for printing and public relations, the contact person for whom appeared on the Commission’s press releases and was a former press director of the Fianna Fail Party.
Although the Referendum Act provides that the Commission may engage such consultants and advisers as it sees fit, the tender for ¤3.5 million of marketing and advertising for the Lisbon campaign was advertised three weeks before the Referendum Commission itself was called into being. The request for tender stated that the tenders were to be submitted to the Department of Foreign Affairs, even though the holding of referendums and the establishment of the Referendum Commission is a matter for the Department of the Environment and Local Government. No explanation has been provided for the involvement of the Department of Foreign Affairs and no confirmation has been given that the choice of Murray Comsultants was that of the Referendum Commission itself and not the Department of Foreign Affairs. There are several other aspects of the Referendum Commission’s work during the Lisbon referendum which are disquieting from a democratic point of view. It is to be hoped that these will be thoroughly probed when the Commission makes its statutory report to the Oireachtas, as must be done by mid-December.
Ensuring that the Referendum Commission abides by its terms of reference and does a proper job in explaining the significance of the constitutional amendment to citizens is clearly fundamental to improving public understanding of the EU and its importance for Ireland’s future. Such understanding is never more important than when the people are being invited to change their Constitution to ensure the superiority of EU law or not. Appended below is our preliminary submission made to the Oireachtas Sub-committee on Ireland’s Future in the EU on 22 October 2008.
Anthony Coughlan Secretary
Preliminary submission to the Oireachtas Sub-Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre:
Why Lisbon is a bad Treaty for both Ireland and the EU
Ireland should remain a fully committed member of the present European Union and European Community that were established by the 1992 M aastricht Treaty on European Union. It should not support the abolition of the present European Community and Union and their supersession by the proposed new European Union whose Constitution is set out in the 2004 Treaty Establishing a Constitution for Europe and the 2007 Treaty of Lisbon, and of which we would all be made real citizens for the first time.
The latter would be a radically undemocratic EU whose proposed Constitution has already been rejected by the voters of France, the Netherlands and Ireland in referendums.
The challenge facing Ireland is how it can induce the Governments of the other EU countries to respect the referendum votes of the peoples of France, Holland and Ireland itself when they rejected this proposed new and highly undemocratic European Union.
The best way of doing this is for the Irish Government to respect the vote of its own citizens last June, inform the other EU Governments that Ireland cannot ratify the Lisbon Treaty as it stands, and that it intends to await the almost certain arrival to office of a Conservative Government in the UK inside the next 18 months. According to Shadow Foreign Secretary William Hague, writing in the Irish Times on 26 July 2008, Britain’s incoming Conservative Government will be committed to putting Britain’s ratification of the Lisbon Treaty “on ice” and will hold a referendum on it in the UK and recommend a No vote to it if that Treaty has not come into force by the time it comes to office. This will also give our fellow-countrymen in Northern Ireland an opportunity to vote on this important Treaty.
By taking such a stand the Irish Government will be upholding democracy in the EU and preventing it being deeply damaged by the political leaders of the big Member States, in particular France’s President Sarkozy and Germany’s Chancellor Merkel, whose power and voting weight in EU law-making would be markedly increased by the provisions of the Lisbon Treaty. Ireland would thereby be upholding the best ideals of the European project.
The principal reasons why the Lisbon Treaty is not in the interests of either the Irish people, of the peoples of the other Member States, or of the EU itself are as follows:-
1. Lisbon would abolish the European Community which we have been members of since 1973 (Art.1 TEU / Treaty on European Union) 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 thus 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 the 500 million people of the EU into real citizens of this new EU Federation, owing their prime obedience to its laws and loyalty to its authority over and above their citizens’ duty to their 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 / Treaty Establishing the European Community). 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 US 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). Ireland’s statutory Referendum Commission failed to make any mention of these facts in the material it sent to citizens for the June 2008 referendum,despite being given ¤5 million to explain the constitutional amendment to voters.
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 go from 8% to 17% as a result, while Ireland’s would halve to 0.8% (Art.16 TEU).
4. It would remove the right of Ireland and the other EU Member States to decide who their national Commissioner would be in the ten years out of every 15 when Member States 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 (Art.214 TEC) - by the right to make “suggestions” only, and leave it for the incoming Commission President to decide (Art.17.7 TEU). Who the Commission President is would be decided mainly by the votes of the Big States. Again the Referendum Commission glossed over this significant Lisbon amendment in its information material to Irish voters by using the same word - “nominate” - for the pre-Lisbon and post-Lisbon situations as if there was no difference!
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 the nationals of the Member States 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 /Treaty on the Functioning of the EU).
8. It would empower the EU Court of Justice to order the harmonization of indirect taxes amongst the EU countries if the Court should decide that failure to do this 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 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. These judgements can be reversed only by a special new Treaty Protocol.
11. It would be a self-amending Treaty which permits EU law-making to be shifted from unanimity to majority voting without the need of 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 that it envisages by providing for the post-Lisbon EU acceding as a corporate entity, separate from its Member States, to Protocol 6 of the European Convention on 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 to which most EU Member States have acceded ( 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 have never heard of it. Again the Referendum Commission made no mention of this proposal in its information material to Irish voters for the 2008 Lisbon referendum, although the matter was drawn to the Commission’s attention.
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 that are 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 procedures ( Protocol on Subsidiarity and Proportionality , Art.7.2). In no sense can this be said to give “more control” to National Parliaments, as pro-Lisbon spokesmen continually assert in blatant contradiction of the truth.
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 this body’s 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 functions. The Referendum Commission ignored this important change in its information material too.
A Note on how all EU Member States may continue be represented on the EU Commission under the Nice Treaty provisions
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 among the EU Governments as expected.
A political declaration by the EU Prime Ministers and Presidents that if the Lisbon Treaty should be ratified by all Member State including Ireland, the European Council will exercise its discretion in 2014 to maintain 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 or approximately equal to the number of Member States, the most practical way of doing this under the provisions of the Nice Treaty is for the Council to agree to reduce the number of Commissioners from 27 to 26, with the person who holds the position of High Representative for Foreign and Security Policy sitting in on Commission meetings in a non-voting capacity instead of having a Commissioner from that country. This would mean that the Commission would remain practically unchanged from the present, with all 27 Member States being represented on it, while the provisions of the Nice Treaty were simultaneously abided by.