How Haughey Lost The Lisbon Campaign, And What The Government Can Do About It

This post has been updated and moved to the blog’s new domain, conductunbecoming.ie, and you can find it here.

The Lisbon Treaty referendum last year could be described in pretty much every way as a complete and utter mess. The government put a long and complicated international treaty to referendum, through an unintelligible constitutional amendment, then completely failed to convey the actual implications in a clear and concise manner. The No campaigners proceeded to engage in scare tactics on a myriad of topics almost completely unrelated to the treaty, while the European institutions themselves showed a shocking lack of understanding of the Irish electorate throughout the campaign. The voters, understandably, refused to vote for something they couldn’t possibly be expected to understand, and the Lisbon Treaty has been in limbo ever since.

Oddly enough, the person most responsible for the whole debacle isn’t in fact any of the above, but rather a man who died before the Lisbon Treaty was ever written; Mr Charles J Haughey.

It was Haughey’s government which was in power in 1987 when the Supreme Court made their now-infamous judgement in the case of Crotty vs. An Taoiseach, and it was that government’s short-sighted response to the ruling that has cascaded towards the situation that Ireland, and indeed the entire EU, now finds itself in.

The Crotty judgement itself (which you can read here) is quite widely misunderstood. The judgement didn’t state that each EEC/EU treaty be put to referendum. What it stated was that the portion of the Single European Act that dealt with common foreign policy was unconstitutional, because, while the Government is constitutionally entitled to decide foreign policy and enter into international treaties, no provision was made for it to enter into agreements that would bind it to cooperate on the formulation of foreign policy itself. This was a split decision of the court (3 to 2), and Chief Justice Finlay was one of the two who dissented. It is also important to note that the Court upheld the constitutionality of every other aspect of the Single European Act, including the expansion of Qualified Majority Voting to various new policy areas.

The best course of action for the Government at the time, and the course which, in retrospect, should have been taken, would have been to ratify Titles I, II and IV (the parts which were considered constitutional) of the SEA as planned, and put forward a constitutional amendment which either allows the Government in general to take part in cooperation with other states in the formulation of common foreign policy (subject to whatever constitutional restrictions are deemed necessary), or more specifically to allow the state to take part in “European Cooperation in the Sphere of Foreign Policy”, as referred to in Title III of the SEA. This would have cleared up the confusion in the wake of the Crotty judgement as to whether referenda would be required for all future treaties or not.

Instead, the Government decided to take the politically expedient route, and simply put forward a referendum to insert “The State may ratify the Single European Act (signed on behalf of the Member States of the Communities at Luxembourg on the 17th day of February, 1986, and at The Hague on the 28th day of February, 1986).” into section 4 of Article 29 of the Constitution. By constitutionally recognising the entire treaty, this set the precedent that referenda would have to be held on the whole text of every future treaty. While this may not have been a huge problem for the SEA (which was only 11 and a half pages long), the 272 page Lisbon Treaty is obviously a different matter altogether.

This practice has led to Article 29 becoming more and more complex over the past two decades, as every treaty has required additional text to be inserted. The initial text of section 4 of Article 29, when the Constitution was first enacted in 1937, was the following:

1. The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.

2. For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.

Compare that to what the same section would have become had we passed the referendum last year:

1° The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.

2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.

3° The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). The State may ratify the Single European Act (signed on behalf of the Member States of the Communities at Luxembourg on the 17th day of February, 1986, and at the Hague on the 28th day of February, 1986).

4° The State may ratify the Treaty on European Union signed at Maastricht on the 7th day of February, 1992, and may become a member of that Union.

5° The State may ratify the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts signed at Amsterdam on the 2nd day of October, 1997.

6° The State may exercise the options or discretions provided by or under Articles 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5° of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

7° The State may ratify the Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts signed at Nice on the 26th day of February, 2001.

8° The State may exercise the options or discretions provided by or under Articles 1.6, 1.9, 1.11, 1.12, 1.13 and 2.1 of the Treaty referred to in subsection 7° of this section but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

9° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

10° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 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.

11° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of membership of the European Union referred to in subsection 10° of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.

12° The State may exercise the options or discretions provided by or under Articles 1.22, 2.64, 2.65, 2.66, 2.67, 2.68 and 2.278 of the Treaty referred to in subsection 10° of this section and Articles 1.18 and 1.20 of Protocol No. 1 annexed to that Treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

13° The State may exercise the option to secure that the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community) shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

14° The State may agree to the decisions, regulations or other acts under—

i Article 1.34(b)(iv),

ii Article 1.56 (in so far as it relates to Article 48.7 of the Treaty referred to in subsection 4° of this section),

iii Article 2.66 (in so far as it relates to the second subparagraph of Article 65.3 of the Treaty on the Functioning of the European Union),

iv Article 2.67 (in so far as it relates to subparagraph (d) of Article 69A.2, the third subparagraph of Article 69B.1 and paragraphs 1 and 4 of Article 69E of the Treaty on the Functioning of the European Union),

v Article 2.144(a),

vi Article 2.261 (in so far as it relates to the second subparagraph of Article 270a.2 of the Treaty on the Functioning of the European Union), and

vii Article 2.278 (in so far as it relates to Article 280H of the Treaty on the Functioning of the European Union),

of the Treaty referred to in subsection 10° of this section, and may also agree to the decision under the second sentence of the second subparagraph of Article 137.2 of the Treaty on the Functioning of the European Union (as amended by Article 2.116(a) of the Treaty referred to in the said subsection 10°) but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

15° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to—

i Article 1.2 of the Treaty referred to in subsection 7° of this section, or

ii Article 1.49 of the Treaty referred to in subsection 10° of this section, where that common defence would include the State.

The changes have been slowly creeping their way into the Constitution over the past few decades, and we’re now at a point where a constitutional amendment could be needed for virtually any action by the state on EU matters, regardless of how trivial. In fact, the complexity of the article now makes it very difficult to determine what, if any aspects of EU treaties are constitutional or unconstitutional, and successive Governments have played it safe by adding subsection after subsection in referenda, rather than risk having a second Crotty-style case be brought before the Supreme Court.

The failings of the current Article 29 of the Constitution, along with the tactic of holding referenda on EU treaties in their entirety, became clear in last year’s referendum campaign, where the central issues were not of the substance of the treaty itself, but of the complexity and lack of understanding of it. The European Commission put out a survey immediately after the result was known, and the results are frankly depressing for anyone who hoped the campaign would be fought on facts and issues.

The key deciding factor on the No side was a lack of information on the treaty, which swayed no less than 45% of No voters. More worrying still was that 48% of No voters were of the belief that the Lisbon Treaty would have brought in conscription to a European army, and 49% thought that it would have brought in abortion into Ireland, despite the fact that these issues were definitively, unequivocally unaffected by the treaty. A total of 72% of voters on both sides considered corporation tax to be somewhat or very important to their decision, even though the Irish veto on such matters would be retained. Even among Yes voters, only 18% claimed to have a good understanding of what the treaty was about, a figure that dropped to 10% for those who voted No.

The way in which this referendum was decided shows the current system of referenda on EU treaties to be a gross corruption of the Irish system of parliamentary democracy. The entire system of a representative legislative branch is rooted in the idea that the average citizen has neither the time, background knowledge, nor inclination to read and make decisions on complex and often technical legal documents. The Lisbon Treaty, which is probably one of the most complex pieces of legal text that is likely to go through any parliament, was rejected on the basis that a huge proportion of the population simply don’t understand it. The solution to this is clearly not to go about adding further complexities in the form of opt-outs or special clauses, but to restructure the way in which EU treaties are put to the Irish people, such that they have a clear understanding of what they are voting on, and are not forced to wade through the technicalities and administrative procedures that make up the majority of these documents.

The only rational way forward is for the government to largely rewrite Article 29 of the constitution, with the aim to simplify all future EU referenda. The No campaigners, such as Sinn Fein and Libertas, are vainly claiming that they represent the public’s desire to renegotiate or scrap the treaty, when there is little indication that no voters agree with either group’s stance. On the other hand, the Yes side are either giving out to each other for not campaigning hard enough, or working to complicate the treaty even further by adding extra clauses and provisions. All groups seem to be ignoring what appears to be a considerable consensus among the electorate, which is that, while they do wish to be consulted on matters central to our involvement in the European Union, they want the referenda to take place in a simple, understandable context, without having to wade through hundreds of pages of legalese.

The process would take a significant amount of time (over a year, at least), but it would be worthwhile in the long run. First, the government should set up an inter-party Oireachtas committee to begin formulating proposals on how to rewrite Article 29, inviting advice and comments both from constitutional and European legal experts, as well as political groups and members of the public. The aim of this committee would be to completely replace subsections 3 onwards of Article 29.4, and any other sections of Article 29 as may be necessary, with a much simpler wording, stating that we are members of the EU, and entitling the Government and Oireachtas to sign up to any treaties thereof. This would then be followed by a clause guaranteeing, in clear and unequivocal terms, that the Government cannot cede decision-making power on a number of central issues, such as defense, direct taxation, abortion, or whatever.

The wording would have to be very clear in that, if a treaty were to encroach on any of these issues, a referendum would be held on the issue itself, not on the whole treaty. In fact, if multiple issues are breached, there should be multiple referenda, one for each issue. For example, if a future treaty affected both defense policy and taxation policy, two referenda would be held; one allowing for certain cooperation on taxation matters, and another allowing for certain cooperation on matters of defense. Then, we could pass the taxation referendum, but not the defense one (say), and the Government would have a clear and decisive mandate from the people on which to renegotiate.

This amendment, in it’s initial form, would have to be such that the Government can’t enact the Lisbon Treaty. If it did allow as much, the entire referendum would just be portrayed as “Lisbon 2”, which would completely defeat the purpose of establishing a base from which to simplify future debate. It would have to be made clear that any ratification of the Lisbon Treaty, or any treaty renegotiated or derived from it, would still require a further referendum based on a number of the restrictions placed in the amendment. Only after this amendment is passed by referendum should the Government even consider planning referenda to ratify any renegotiated treaty. While this will most probably mean amending Article 29 once, then amending it again a few months later, it’s necessary to ensure that the proper framework is set up for a rational debate on future treaties.

A rough draft of the amendment would go somewhere along the lines of this:

1° The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.

2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.

3° The State may become a member of the European Union and all bodies thereof, and may ratify the treaties and amendments establishing that European Union, each subject to the prior approval of both Houses of the Oireachtas.

4° Excepting the provisions made in subsection 5 of this section, no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union, or prevents laws enacted, acts done or measures adopted by the European Union or by institutions thereof, or by bodies competent under the Treaties establishing the Union, from having the force of law in the State.

5° The State shall not be bound by decisions, regulations, other acts or treaties which would enable any body or institution of the European Union to, without the prior agreement of the State, —

i Form a common defense that would include the State,

ii Limit or control the ability of the State to regulate direct taxation,

iii etc., etc.,

I’m obviously no lawyer, but hopefully you get the idea. Any future referenda on EU treaties would then no longer necessitate inserting the entire treaty in there, but merely making any changes to subsection 5 as may be deemed necessary to enact the treaty. We would then have a Constitution that has clear restrictions on the ability of the Government to ratify EU treaties, but does so in a way that all referenda on the matter would be questions relating directly to the restrictions themselves, and not to the entirety of the treaty. This is the only way to address the public’s main concern over the ratification of the Lisbon Treaty (that they didn’t understand it), and if the government wants to move forward in Europe, and prevent such a debacle of a referendum from ever happening again, this is the path they must take.

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