Irish to vote on exactly the same text of Lisbon Treaty - EU admits that nothing has changed
19 June 2009
EU leaders meeting in Brussels this week have agreed to a series of 'guarantees' on the Lisbon Treaty in return for Ireland holding a second referendum, after Irish voters rejected the Treaty last year.
They have agreed on a 'declaration' which seeks to address what EU leaders perceive to be Irish concerns about taxation, ethical issues, workers' rights and neutrality. They also reiterated an agreement reached in December to postpone the reduction of the size of the Commission laid down in the Lisbon Treaty.
However, despite promises from the Irish government that they would not force people to vote on exactly the same text a second time around, the deal reached this week makes no change whatsoever to the text of the Treaty, meaning Irish voters will be voting on exactly the same text they rejected last year.
EU leaders agreed to attach the declarations as a protocol to the Treaty after the second Irish referendum and once it is already in force, but the text of the conclusions notes that: "The Protocol will clarify but not change either the content or the application of the Treaty of Lisbon."[1]
Today the EU Presidency confirmed that: "the text of the guarantees explicitly states that the Lisbon Treaty is not changed thereby".
Open Europe Director Lorraine Mullally said:
"The outcome of this latest round of EU backroom deals is pretty clear - the Irish people will be asked to vote on exactly the same text they rejected last year - which is precisely what the Irish government promised not to do."
"Despite lengthy negotiations and lots of superficial statements about 'respecting' the Irish 'no' vote, not a single comma has changed - if there were any changes at all to the Treaty, then all the other member states would have to re-ratify it."
"None of the statements made today are binding in EU law. But even if they were, they do nothing to address Irish concerns. All of the problems with the Treaty remain - the fact that it abolishes the national veto in more than 60 areas of policy, it significantly reduces Ireland's power to block laws it disagrees with, and it creates powerful new institutions like an EU President and an EU Foreign Minister which will dilute Ireland's influence in Europe. And despite what EU leaders claim, there is absolutely no guarantee that Ireland will keep its EU Commissioner indefinitely."
"Forcing Irish people to vote again on exactly the same Treaty, while simultaneously telling them they have listened to their concerns is an extension of the shocking dishonesty that saw EU leaders trying to pretend that the Lisbon Treaty was different from the Constitutional Treaty rejected by France and the Netherlands. This is EU politics at its worst."
What has been agreed?
Key points:
Irish voters will be voting on exactly the same text a second time around. EU leaders have agreed a list of statements which do not change the Lisbon Treaty in any way, but reiterate what the Treaty already says. They are not legally-binding under EU law, but even if they do become legally-binding in the form of a 'protocol' in the future as is planned, EU leaders have confirmed that they will still not change the substance of the Treaty. This means that Irish voters will be asked to vote on exactly the same text of the Lisbon Treaty a second time around, despite having already rejected it, and despite promises from the Irish government that they would not present the same text again.
The 'guarantees' are mostly red-herrings which do not address Irish voters' concerns. Despite comparisons with the situation facing Denmark in 1992 after its voters rejected the Maastricht Treaty, unlike Denmark, Ireland has secured no opt-outs from the Lisbon Treaty, but a series of political commitments, meaning it will apply to Ireland in exactly the same way as was envisaged when Ireland voted on it last year. Even if they were to make any changes to the text, the handful of issues EU leaders have focussed on are largely red-herrings which distract from the real problems with the Treaty. The Treaty abolishes the national veto in more than 60 areas of policy - on everything from transport to the rights of criminal suspects and even some aspects of foreign policy. Ireland will lose 40% of its power to block EU laws it disagrees with - compared with a 4% decrease in Germany's power to block legislation, and the Treaty creates a powerful new EU President, and EU Foreign Minister, which will dilute Ireland's influence in the EU. The Treaty also hands the European Court of Justice significant new powers to act in sensitive areas such as Justice and Home Affairs.
In particular, Irish concerns about neutrality remain unaddressed. Polling shows that concerns about the Lisbon Treaty's impact on Ireland's policy of neutrality were among the most prominent of reasons for voting no. The declaration agreed by EU leaders - even if it does become legally-binding at some future date - does nothing to address Irish voters' concerns about the impact of the Treaty on the country's neutrality, because it provides no exemption for Ireland from the mutual defence clause in Article 42(7). Experts argue that this is the only way to guarantee that the Treaty does not threaten Ireland's neutrality.
There is no guarantee that Ireland will get to keep its Commissioner indefinitely. The 'guarantee' that Ireland will get to keep its EU Commissioner is no such thing. EU leaders have agreed that, once the Lisbon Treaty is in force, they will vote unanimously to change the default Lisbon arrangement which reduces the size of the Commission by a third. However, there is no legal obligation on the member states to stick to their word, and the current EU leaders cannot guarantee that their successors will deliver on the pledge. Furthermore, there is no guarantee that this arrangement, if agreed, will prevail in the future - it could be that by as early as 2019 the Commission will revert to the Lisbon default position of two thirds membership. The status quo seems far safer for Ireland - under the current, Nice Treaty arrangements, EU leaders have the option to reduce the size of the Commission by just one member, meaning Ireland would be without a Commissioner for only 5 years in every 135. In contrast, under Lisbon, member states could potentially be without a Commissioner for 5 out of every 15 years.
In detail
The text of the Lisbon Treaty remains unchanged - Irish voters must vote on exactly the same Treaty
Following the December EU summit, at which the 'guarantees' were first formulated, Irish Foreign Minister Micheal Martin promised:
"We will not be asking people to vote on the same proposition."[2]
In May, Irish Europe Minister Dick Roche reiterated this, saying:
"Our partners understand, I believe, that we cannot and will not put the same package to our people later this year." [3]
However, emerging from the summit today, Gordon Brown confirmed that nothing in the Treaty had changed, and that Irish voters will be voting on exactly the same text. He said:
"The summit conclusions set out the fact that the protocol does not change the relationship between the European Union and the member states, and that the protocol clarifies but does not change the content and application of the Treaty... The Treaty assurances have made explicit what was implicit in the Treaty already."[4]
A statement from the EU Presidency confirmed:
"The guarantees must be sufficient in the light of the concerns of Irish citizens, yet they must not lead to the re-opening of the ratification process of the Lisbon Treaty in other Member States. Thus, the text of the guarantees explicitly states that the Lisbon Treaty is not changed thereby."[5]
Patrick Smyth, Brussels Correspondent for the Irish Times and strong advocate of the Lisbon Treaty, told an Open Europe meeting on 18 June that:
"Nothing in the declarations materially affects the treaty text. If there was a material difference, then the Treaty would have to be re-ratified in all the other member states".
He confirmed that "the difference to the Danish case is that Denmark got an opt-out, which was a material change in effect".[6]
Indeed the deal reached this week does not make a single change to the Lisbon Treaty ahead of the Irish referendum, meaning Irish voters will be asked to vote on exactly the same text a second time around.
EU leaders have agreed that the declarations will eventually be written into EU law as a protocol attached to the Croatia Accession Treaty, expected in 2010 or 2011. However, there is no guarantee that the Treaty will be ratified, as it needs formal approval in all EU states. Even if it does become law, the protocol will do nothing to change the text of the Treaty.
The conclusions of the summit clearly state:
"The Protocol will clarify but not change either the content or the application of the Treaty of Lisbon."[7]
All this is in keeping with what the UK Government predicted following the outcome of the December summit, at which the declarations were first discussed.
Foreign Office Minister Lord Malloch Brown confirmed that it had been agreed that Ireland will be voting on exactly the same text:
"The European Council agreed a package of measures to offer Ireland the reassurances that it needed on the Lisbon treaty covering taxation, defence, social issues and the size of the Commission. These do not change the Lisbon treaty... Ireland sought and has received guarantees, but the treaty has not been reopened. In that regard, it is a referendum on the same treaty as before."[8]
In May, Europe Minister Caroline Flint said that EU leaders had agreed there would be "no change or amendment to the Lisbon Treaty". In a letter to Cheryl GiIlan MP, she wrote:
"At the European Council on 11-12 December 2008, all countries agreed that there could be no change or amendment to the Lisbon Treaty and that we should proceed to ratification."[9]
Liberal Democrat MEP and Constitutional Affairs expert Andrew Duff, who helped draft the Lisbon Treaty, and who describes himself as a "militant federalist", is remarkably candid about the situation.
In his book, "Saving the European Union, The Logic of the Lisbon Treaty", he says:
"An Irish protocol bound as an afterthought to the Lisbon treaty itself would trigger a new intergovernmental conference in the course of 2009 (risking a wider renegotiation) followed by national ratification, yet again, in all twenty-seven member states. The only practical option is that a pre-cooked protocol is added at some unspecified future date to the Treaty on European Union and the Treaty on the Functioning of the Union once Lisbon is safely in force. The opportunity to do this might still be several years ahead. In the meanwhile, Ireland will be asked to take it on trust that such a manoeuvre will eventually take place."[10]
Elsewhere, he has also expressed serious doubts about the legal feasibility of attaching protocols to the Croatian Accession Treaty. He said:
"Adding this protocol to the Croatian accession treaty would leave the treaty wide open to attack in the courts".[11]
According to the Irish Times, "he added that rules in the EU treaties governing accession treaties only allow issues pertaining to a state's accession to be dealt with."
This is not the same situation faced by Denmark - Ireland will not get opt-outs from the Treaty
Several commentators and EU leaders have compared the Irish situation to the Danish situation after it voted no to the Maastricht Treaty in 1992.
Following the no vote, the Danish government negotiated opt-outs from key parts of the Treaty, such as the euro. The text was put to the people in a second referendum, and they voted yes.
However, the deal to be offered to Ireland is significantly different - whereas Denmark secured opt-outs from the Maastricht Treaty, Ireland is not seeking to opt out of any part of the Treaty. As confirmed by Gordon Brown, the 'declaration' agreed at the EU summit is merely a restatement of what the Treaty already says.
Indeed in November 2008 the Irish Parliament's Sub-Committee on European affairs warned against pursuing opt-outs from EU policy along the lines of the Danish arrangements.[12]
The declarations do nothing to address Irish concerns about the threat to neutrality
Aside from the fact that the 'declarations' have no force in EU law and therefore cannot be seen as real 'guarantees', even if they did become law as a protocol they still do not address the real concerns of Irish voters, as confirmed by the summit conclusions themselves. The clearest example of this is the statement on neutrality.
Research published in September 2008 by Ireland's Department of Foreign Affairs showed that neutrality was the most divisive issue in the Lisbon Treaty referendum campaign[13]. 88 percent of those who voted no said that neutrality was an important issue for Ireland within the EU.
In a series of articles for the Irish Times in November and December last year, Dr. Karen Devine, expert in Irish neutrality and researcher at Dublin City University, warned that "A neutral state cannot legally or politically sign up to the Lisbon Treaty mutual assistance clause because it violates neutrality."[14]
The declaration from the European Council states that:
"The Lisbon Treaty does not affect or prejudice Ireland's traditional policy of military neutrality."
However, ahead of the final conclusions of the summit, Dr. Karen Devine noted that the proposed declaration on security and defence as published in the Irish Times (which is identical to that reproduced in the final conclusions of the summit):
"does not exempt Ireland from the mutual defence clause in Article 42(7) and the obligation contained in the clause to provide assistance to a member-state that is subject to armed aggression on its territory. This obligation means that Ireland has ceded the ability to adhere to the international customary law of neutrality. Indeed, Ireland's White Paper on Foreign Policy specifies that Treaty 'provisions committing the parties to collective action in the event of armed attack against one or more of them...would not be compatible with an intention to remain neutral' (1996: 120). Therefore the proposed declaration does not address one of the concerns of the Irish people who voted against the Lisbon Treaty because of the loss of neutrality."
She argued that:
"in order to safeguard 'neutrality', the only solution is (1) to have a legally binding protocol providing for Ireland's opt out of Article 42(7), or (2) to have the proposed wording of the declaration amended to specify that Ireland is not under any obligation to provide assistance under Article 42(7); however, this would signal a change in the meaning of the mutual defence clause in the Lisbon Treaty and is unlikely to be accepted."
Indeed the statements on security and defence policy in the final conclusions of the summit are identical to those in the draft conclusions, meaning the threat to Irish neutrality remains.
No guarantee that Ireland will not lose its Commissioner under Lisbon
One of the key aspects of the 'deal' being offered to Ireland is a 'promise' it will get to keep its EU Commissioner.
The declaration states:
"Having carefully noted the concerns of the Irish people as set out by the Taoiseach, the European Council, at its meeting of 11-12 December 2008, agreed that, provided the Treaty of Lisbon enters into force, a decision would be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State."
However, this is not a legally-binding guarantee, but a political commitment - and a rather loose one at that. It is not a guarantee in any way, because it does not bind future heads of state, who would be free to go back on it. With no guarantee that Ireland will get to keep its Commissioner indefinitely, this is a worse solution than keeping the status quo.
Under current arrangements, the number of Commissioners is due to be reduced from the point the next Commission takes up its duties - which is November this year. The Nice Treaty states that "When the Union consists of 27 Member States... The number of Members of the Commission shall be less than the number of Member States."[15]
However, it is not specified how many Commissioners there must be, beyond stipulating that there must be fewer than 27. It says:
"The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously. The number of Members of the Commission shall be set by the Council, acting unanimously."
This means that under the current, Nice Treaty rules, and without Lisbon, the Council is free to decide that there should be just one fewer Commissioner than there are member states.
With a system of equal rotation, Commission terms of 5 years and 27 member states, this would mean each member state would be without a Commissioner for only 5 out of every 135 years. Importantly, Ireland currently wields a veto over the decision on the number of Commissioners under the current treaties - and so could insist that the Commission is reduced by only one member.
In contrast, under the system proposed by Lisbon, the size of the Commission will be reduced by one third from 2014, meaning Ireland (and every member state) will be without a Commissioner for 5 out of every 15 years. The Treaty also states that the European Council, acting unanimously, may decide to alter this number.
The political agreement reached at the Council is nothing more than a loose commitment that in 2014, EU heads of state and government (who will mostly be different from those currently in office today) will take a decision to keep one Commissioner per member state. This is something that could be done anyway, if the Lisbon Treaty were in force, and in no way binds future governments to deliver on it.
Once the Lisbon Treaty is in force, the legally-binding default provision that the size of the Commission will be two-thirds of the member states from 2014 will apply, and a decision to move away from this could be vetoed by any member state. In holding a second referendum on the Lisbon Treaty, Ireland is relying on a political commitment that all the other member states will, at some unspecified future date, decide to trump the legal status quo and move back to a system of one Commissioner per country.
As noted by the (very pro-Lisbon) Irish Sub-Committee on European Affairs:
"This option is not without its difficulties and may prove to be politically unachievable. It presupposes a willingness on the part of the other Member States to abandon the decision to reduce the size of the Commission in the interests of solving the predicament created by the referendum result."[16]
It also does not state for how long this will continue to be the case, opening up the possibility that Ireland will eventually lose its Commissioner in any case. In his book about the Lisbon Treaty, Liberal Democrat MEP Andrew Duff suggests that the agreement to postpone the reduction of the size of the Commission might last only until 2019.[17]
While not perfect, the status quo of the Nice Treaty arrangements is better for Ireland than the Lisbon Treaty. The only way to ensure Ireland keeps a Commissioner indefinitely is to change the text of the Lisbon Treaty to make this explicit.
The declarations are mostly red-herrings, and do nothing to address the real problems with the Lisbon Treaty
The decision by EU leaders to focus on only a handful of issues, which they themselves have chosen, distracts from the real problems with the Lisbon Treaty, and fails to address any of the Irish people's legitimate concerns about the loss of power to EU institutions.
Polling in Ireland shows that the handful of concerns that EU leaders have chosen to focus on are mostly red-herrings. A TNS/MRBI poll for the Irish Times released on 6 June 2008 showed that people's top reasons for voting were: "I don't know/understand what I'm voting for" (30%), "To keep Ireland's power and identity" (24%), and "to safeguard Ireland's neutrality" (22%). Only 5% said they were voting no "to safeguard Ireland's low corporate tax rate". Abortion or social matters were not mentioned, and, contrary to claims by many advocates of the Treaty, only 5% said they were voting no to protest against the government.[18]
More recently, an exit poll of voters during the European elections in Ireland at the beginning of June 2009 showed that abortion, taxation and workers' rights did not even feature among the main concerns of those who plan to vote no a second time. The issue of neutrality did, however.[19]
Even the European Commission's own Eurobarometer poll shows that concerns about social issues such as abortion featured low among people's reasons for voting no - at only 3.8%. People were far more concerned about protecting Irish identity (19.5%) and safeguarding Ireland's neutrality (10.3%), the top reasons after the first one which was "I do not know enough about the Treaty and would not want to vote for something I am not familiar with" (34.7%).[20]
Even when the declarations agreed at the EU summit are eventually written into EU law in the form of a protocol, they will not answer any of the problems with the Treaty.
The Lisbon Treaty abolishes the national veto in more than 60 areas of policy - on everything from transport to the rights of criminal suspects and even some aspects of foreign policy.
Ireland will lose 40% of its power to block EU laws it disagrees with - compared with a 4% decrease in Germany's power to block legislation.
The Treaty creates a powerful new EU President, ending the system of rotating presidencies which have hitherto allowed smaller countries like Ireland to set the agenda in Europe for six months at a time. The Treaty creates an EU Foreign Minister in all but name, and gives the European Court of Justice significant new powers to act in sensitive areas such as Justice and Home Affairs.[21]
Judges at the German Constitutional Court recently pointed out that the Treaty involves a clear extension of the EU's competences. One judge said: "One has to ask soberly: What competences are left with the Bundestag [German lower house of parliament] in the end?" He also asked "whether it would not be more honest to just proclaim a European federal state".[22]
The Treaty will also do nothing to strengthen democracy in Europe. The Treaty's provisions on national parliaments are so weak as to be meaningless - and were described as the President of the German Constitutional Court as "ineffective" and "impractical".[23]
Following an inquiry into the Treaty's provisions for national parliament, the cross-party House of Commons EU Scrutiny Committee said: "We doubt the significance of the 'greater opportunities' for national parliaments to be involved in any meaningful manner in the workings of the EU".[24]
Andrew Duff MEP, who was involved in the drafting of the Treaty, even admitted to the Scrutiny Committee that:
"It was understood by those of us involved in its drafting and, then, re-drafting that the mechanism [for national parliaments], although a necessary addition to the system of governance of the Union, was not really intended to be used. It is, in Bagehot's terms, more a dignified part of the European constitutional settlement than an efficient one."[25]
It should also be remembered that this is not the first time that EU leaders have fudged a meaningless deal on the Treaty in an effort to force it through.
Most people now realise that the Lisbon Treaty is a carbon copy of the original Constitutional Treaty that was voted down in both France and the Netherlands in 2005. Open Europe's side-by-side comparison of the two texts found that 96% of the original reappears in the Lisbon Treaty, once the references to the EU's 'symbols' had been removed.[26]
The author of the text himself, Valery Giscard d'Estaing, has confirmed this several times, saying Lisbon "is purely a legal re-writing - incidentally unreadable - of the draft Constitutional Treaty". And he revealed the reason for this: "Above all, it is to avoid having referendums".[27]
Indeed, despite several governments initially promising to give their people a say on the treaty, Ireland was the only country to hold a referendum, because it is constitutionally obliged to do so.
53% of people said 'No', but they will be forced to vote again. One leading German politician said the No vote was "a real cheek"[28], while a British Labour MP said the Irish voted No because they had "become extremely arrogant".[29]
Notes for Editors
1) For more information, please contact Lorraine Mullally on 0044 207 197 2333 or 0044 7817 027911.
2) Open Europe is an independent think-tank calling for reform of the European Union. Its supporters include: Sir Stuart Rose, Executive Chairman, Marks and Spencer plc; Sir Crispin Davis, Former Chief Executive, Reed Elsevier Group plc; Sir David Lees, Chairman, Tate and Lyle plc; Henry Keswick, Chairman, Jardine Matheson Holdings Ltd; Lord Sainsbury of Preston Candover KG, Life President, J Sainsbury plc; Sir John Egan, Chairman, Severn Trent plc and Lord Kalms of Edgware, President, DSG International plc.
For a full list, please click here: http://www.openeurope.org.uk/about-us/supporters.aspx -------------------------------------------------------------------------------- [1] http://www.openeurope.org.uk/research/councilconclusionsjune2009.pdf [2] Irish Times 09.01.09 [3] Irish Times 5.5.09 [4] PA, 19 June [5] http://news.xinhuanet.com/english/2009-06/19/content_11569853.htm [6] See: http://openeuropeblog.blogspot.com/2009/06/round-2-kicks-off.html [7] http://www.openeurope.org.uk/research/councilconclusionsjune2009.pdf [8] Hansard 13.1.09 [9] 14 May 2009, ref 71998. Letter to Cheryl Gillan MP, who then used it in reply to her constituent [10] Page 168 [11] http://www.irishtimes.com/newspaper/world/2009/0402/1224243854498.html [12] Page 5 http://www.oireachtas.ie/documents/committees30thdail/j-europeanaffairs/sub_cttee_eu_01122008-3.pdf [13] See, http://www.irishtimes.com/newspaper/opinion/2008/1126/1227486578655.html, 26.11.08 [14] See, http://www.irishtimes.com/newspaper/opinion/2008/1224/1229728523303.html, 24.12.08 [15] Nice Treaty, Protocol on the Enlargement of the European Union, Article 4 http://eur-lex.europa.eu/en/treaties/dat/12002E/pdf/12002E_EN.pdf Page 166 [16] Page 46 http://www.oireachtas.ie/documents/committees30thdail/j-europeanaffairs/sub_cttee_eu_01122008-3.pdf [17] Page 150 [18] Irish Times, 6 June 2008 http://www.ucd.ie/issda/documentation/TNS-mrbi/183005%20Irish%20Times%20Tables%20Lisbon%20Treaty%20(June%2008).doc [19] RTE/Lansdowne poll http://www.rte.ie/news/elections/exitpoll.pdf [20] July 2008 http://ec.europa.eu/public_opinion/flash/fl_245_full_en.pdf page 42 [21] For more details on the impact of the Lisbon Treaty, see Open Europe's guide: http://www.openeurope.org.uk/research/guide.pdf [22] EurActiv, 12 February 2009, http://www.euractiv.com/en/future-eu/german-court-wary-eu-treaty-power-shift/article-179372 [23] Handelsblatt, 25 February 2008 [24] http://www.publications.parliament.uk/pa/cm200708/cmselect/cmeuleg/563/563.pdf [25] For more on national parliaments and the Lisbon Treaty, see here: http://openeuropeblog.blogspot.com/2009/03/national-parliaments-lisbon-treaty-myth.html [26] http://www.openeurope.org.uk/research/comparative.pdf [27] Speech given at the Global Vision/Daily Telegraph conference, 8 September 2008 [28] Axel Schäfer, a member of the German Bundestag committee on EU affairs, Times,15 June 2008 [29] Coulisses de Bruxelles, 11 January 2009, http://bruxelles.blogs.liberation.fr/coulisses/2009/01/lisbonne-le-sec.html#more -------------------------------------------------------------------------------- This email was sent to: lorraine@openeurope.org.uk To unsubscribe, go to: http://openeu.bluestatedigital.com/unsubscribe