A letter to the Political Editor of the Irish Times

THE EUROPEAN JOUNRAL, SEPTEMBER 2008:

Following the campaign of the Irish Times under its political editor, Stephen Collins to call on the Government to ratify the Lisbon Treaty regardless of the ‘No’ vote referendum result, Professor Anthony Coughlan wrote this letter to Mr. Collins, asking why he demand such a profoundly unconstitutional and undemocratic course from our political leaders.

Dear Stephen,

In your Irish Times article you call on the Government to ratify the Lisbon Treaty regardless of the 12 June referendum result.

It is strange that a political correspondent of a major national newspaper should seek to become a partisan player in the political game in this way.

Stranger still that you should be urging such a profoundly unconstitutional and undemocratic course on our political leaders.

You are mistaken if you think that Ireland can ratify the Lisbon Treaty by Oireachtas vote without a referendum.

The Lisbon Treaty, which is the EU Constitution revamped, establishes a constitutionally new European Union, with its own legal personality for the first time, which is legally different from the present European Union that was established by the Treaty of Maastricht and which is referred to in Article 29.4 of the Irish Constitution.

The first sentence of the Constitutional Amendment which the people rejected on 12 June proposed to replace the present Maastricht-based EU by a future Federal-style Lisbon-based EU, of which we would all be made real rather than symbolical citizens for the first time.

The same name, “European Union”, would be used post-Lisbon as pre-Lisbon, but the constitutional and political character of the Union, its Member States and of us as Irish citizens would be transformed fundamentally by the ratification of the Lisbon Treaty.

No Oireachtas vote is constitutionally capable of doing this. With all due respect to you, it is irresponsible to be speading illusions otherwise.

The Lisbon Treaty would also abolish the European Communities other than the Atomic Energy Community which we joined in 1973, and would replace the Treaties on which they are based and which are explicitly referred to in the Irish Constitution. These references would have to be deleted also to enable the State to ratify Lisbon. No Oireachtas vote can do that either.

And there are several other reasons why the Constitution would have to be amended to enable the Lisbon Treaty to be ratified.

Your article proposes an attempt to get around the constitutional requirement, laid down in the 1986-7 Crotty judgement of the Supreme Court, that surrenders of sovereignty to Brussels in European Treaties can only be done by the Irish people in a referendum, for they are the repositories of sovereignty.

I was myself intimately involved in the Crotty case and attended every day of the three hearings of the case: the original Injunction action before Judge Donal Barrington, the High Court stage which Raymond Crotty lost, and the Supreme Court stage which he won. You may be interested to know that it was quite a close-run thing that Crotty did not win his court challenge to the constitutionality of the ratification procedure of the Single European Act on the ground that that Treaty’s central provisions entailed a transfer of sovereignty to Brussels, but on the narrower ground that the requirement to coordinate foreign policy under “European Political Cooperation” entailed such a transfer.

The late Judge Henchy was the swing judge on this point in the five-man court.

Crotty’s lawyers were reliably informed at the time by sources close to the judges that Judge Henchy was anxious to find for Crotty, but that if he did so in relation to the core elements of the Single European Act which had previously been approved by Oireachtas vote, he would effectively have been finding the country’s President at the time, the late Patrick Hillery, as having failed to refer a constitutionally dubious Bill purporting to ratify the SEA to the Supreme Court for assessment of its constitutionality.

Judge Henchy wanted to avoid embarrassing the President, so he approved the main provisions of the SEA as having been covered by the original “license” for Ireland to join a developing European Community, but he joined with the majority of the court in striking down the foreign policy provisions, which did not require Oireachtas approval, as being unconstitutional. So the Crotty judgement was a highly political one amongst the five Supreme Court judges themselves! These facts are not widely known, but I assure you they are correct.

It follows therefore that one cannot assume that the transfers of sovereignty entailed by the Lisbon Treaty would be similarly indulged by the present Supreme Court if the matter should come before it, as you implicitly propose in your article.

Judge Henchy moreover made quite clear in his own judgement in the Crotty case that if the then European Community were to move towards becoming a Political Union, a constitutional referendum would be required here to permit that. The European Union that would be established by the Lisbon Treaty – which is the 2004 EU Constitution revamped – is undoubtedly such a Political Union.

In your article you insult the No-side campaigners by saying that they were “unhampered by any allegiance to the truth”. Truly this is the pot calling the kettle black! I do not recollect you or your fellow Yes-side commentators alerting people during the referendum to the hugely important fact that the post-Lisbon EU would be constitutionally and politically profoundly different from the pre-Lisbon EU. . .

Or to the fact that we would be made real citizens for the first time of this post-Lisbon EU, owing obedience to its laws and loyalty to its authority over and above our citizens’ duty to the Irish Constitution and laws. . .

Or to the fact that in the post-Lisbon EU the Irish Government would lose the right it has at present to decide who its national Commissioner would be when we have a member on the Commission, and that this would be replaced by a right to make “suggestions” only for the incoming Commission President to decide – so replacing the present bottom-up process for appointing the Brussels Commission by a top-down one post-Lisbon . . .

Or to the fact that Lisbon proposes to restore the death penalty in Europe for the EU as a corporate entity in time of war or imminent threat of war, by providing that the post-Lisbon EU would accede to Protocol 6 of the European Convention on Human Rights, which permits the use of the death penalty in such circumstances, rather than to Protocol 13, which abolishes the death penalty at all times and which the individual Member States have separately acceded to. This matter has caused national outrage in Austria and some controversy in Germany, but scarcely anyone has heard about it here in Ireland.

But maybe you would dismiss that too as just another No-side “untruth”?

Yours, Anthony Coughlan