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Wednesday 14 May 2008

The Referendum Commission is failing to carry out it’s statutory duty of explaining to citizens what the Constitutional amendment is about which we shall be voting on in June.

Questions for the Referendum Commission regarding deficiencies in it’s publicity material to date.

Referendum Commission Chairman Mr. Justice Iarfhlaith O’Neill gets his facts wrong on the Laval/Vaxholm judgement of the EU Court of Justice.

The  1998 Referendum Act imposes on the Referendum Commission the statutory obligation “to prepare a statement or statements containing a general explanation of the subject matter of the proposal  (i.e.the proposal to amend the Constitution) and of the text thereof in the relevant Bill and any other information relating to those matters that the Commission considers appropriate.”

In view of this clear injunction from the Oireachtas it is surprising that neither the Referendum Commission’s web-site nor the Handbook which it it is sending to voters gives the text of the proposal to amend the Irish Constitution, or even a summary of it.

The Commission’s Handbook to Voters is significantly misleading in that it states, on Page 2:”You are being asked to decide whether or not to change the Constitution of Ireland to allow Ireland to ratify the Treaty of Lisbon.”   But that is only part of the decision Irish voters are being asked to make regarding the proposed Constitutional Amendment.

The first sentence of the Constitutional Amendment, which is set out in the 28th Amendment of the Constitution Bill 2008, makes clear that the Amendment’s purpose is to enable the State to ratify the Treaty of Lisbon AND to be “a member of the European Union established by virtue of that Treaty.”

However, the  Referendum Commission  makes no reference whatever  to the latter part of this sentence. Nor does it make any reference to the important sentence following, which would give the “laws, acts and measures” of the post-Lisbon European Union constitutional  supremacy over the Irish Constitution and laws.

The following are the first two subsections  – the centrally important ones  – of the  English text of the Constitutional Amendment which is set out in the 28th Amendment of the Constitution Bill 2008,  which voters will be voting on on 12 June and which is “the subject matter of the proposal and text thereof in the relevant Bill” that it is the statutory duty of the Referendum Commission to explain to citizens:

“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.  (emphasis added)

11:   No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by 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.”

By omitting any reference in either its web-site or its Voters’ Handbook to “the European Union established by virtue of that Treaty”, viz. the Lisbon Treaty, the Referendum Commission is failing in its statutory duty of explaining  to the Irish people the profound constitutional difference between the European Union which would be established by the Treaty of Lisbon and  the European Union which we are currently members of and which was established by the 1993 Maastricht Treaty.

The Referendum Commission is thus failing in its obligation to tell voters that the European Union which would  be established by Lisbon – unlike the present EU –  would have the constitutional form of a supranational Federation  in which Ireland and the other EU Member States would have the constitutional status of regional or provincial states, and of which we would all be made real citizens for the first time, rather than our being just notional or honorary EU “citizens” as at present.

One can only be a citizen of a State and all States must have citizens. As real citizens of the constitutionally new European Union to be established by the Lisbon Treaty –  and in contrast to the current EU which was establshed by the 1993 Maastricht Treaty – we would owe the post-Lisbon EU the normal citizens’ duty of obedience to its laws and loyalty to its authority over and above our obedience and loyalty to the Irish State and the Irish Constitution and laws.

We would still retain our national Irish citizenship in the post-Lisbon European Union,  but our new dual citizenship post-Lisbon would not be citizenship of two different States, but rather of the federal and regional/provincial levels of one state, as is normal in such classical Federations as the USA, Federal Germany, Switzerland and Canada.

The Irish Constitution would remain in being  after Lisbon – just as the various states of the Federal USA still retain their constitutions –  but it would be subordinate to the EU Constitution in any case of conflict between the two.  The rights and duties attaching to our  new  EU citizenship would also be subordinate  to the rights and duties attaching to our national citizenship in any case of conflict, because of the primacy of EU law over national law in the post-Lisbon  Union,  as indicated in the second sentence of the proposed Constitutional Amendment quoted above.

These are major constitutional changes by any standard –  for the EU, for its Member States and for Irish citizens. Yet there is not a hint of them in the publicity material of the Referendum Commission so far.

The present EU is not a State and does not have legal personality such that it can have citizens as members. The “European Union established by virtue of the Lisbon Treaty”, which is referred to in the first and most important sentence of the 28th Amendment of the Constitution Bill,  would be quite different in this and other respects.

One can scarcely imagine a more significant constitutional change for Irish citizens than that they should be made real citizens of a real European Union which would  have  the constitutional form of a Federation for the first time by virtue of the Lisbon Treaty.

Lisbon would give the constitutionally new European Union that it would establish  a Federal Constitution indirectly, just as the 2005 EU Constitution which the French and Dutch rejected  sought to do that directly. The difference is that the word “Constitution” has been abandoned  and the whole process is wrapped in deception and misrepresentation, with citizens in every EU country except Ireland being denied a direct say in the constitutional revolution which the  Lisbon Treaty proposes.

One can imagine that the Government and Yes-side proponents would like to keep these major constitutional changes which would be made by the Lisbon Treaty  from the attention  of Irish voters. But for the Referendum Commission to do so in its initial publicity material  is truly alarming.

It may be that the Commission has got wrong or one-sided legal advice.  It may be that it intends to remedy  this fundamental deficiency in later statements that it issues.   Certainly the constitutional aspects of the Treaty of Lisbon which it is choosing to ignore to date have been brought to its attention in private communications  from this organisation.

Questions the media and citizens should put to the Referendum Commission

We therefore urge the Irish media to ask the Referendum Commission why the text of the Constitutional  Amendment set out in the 28th Amendment of the Constitution Bill  – which it is its statutory obligation to explain – is not even carried on the Commission’s web-site, although  the full text of the Lisbon Treaty is available there, and  why the Commission in its publicity material  to date is concentrating entirely on the first clause of the first sentence of the proposed Constitutional Amendment and is totally ignoring the important second clause as well as the second sentence.

We urge the Irish media to ask Mr Justice Iarfhlaith O’Neill and  his Referendum Commission colleagues why they  are not explaining to Irish voters what is the difference  between the European  Union which would be established  by the Treaty of Lisbon and the current European Union  which was established by the Treaty of Maastricht – for a grasp of that difference is central to appreciating  the significance of the Constitutional Amendment the Irish people will be voting on in four weeks time.

We urge the media to ask the Referendum Commission what is the difference between citizenship of the European Union “complementing” one’s national citizenship  as under the present Treaties(Art.17 TEC) and being made “additional to” national citizenship by the Lisbon Treaty’s amendment to the Treaty on European Union (Art.9 amended TEU)?  Why does the Commission  makes no reference to EU citizenship or its implications in its publicity material to date?

The Referendum Commission cannot do a proper job of explaining the Treaty of Lisbon to voters unless it addresses the character of the constitutionally transformed European Union which the Lisbon Treaty would bring into being.

There is still time for the Commission  to fulfil its statutory obligation and use fruitfully the ¤5 million of public money it has been allocated. The Irish media  and all concerned citizens should call on it do that.

The members of the Referendum Commission are Mr Justice Iarfhlaith O’Neill(Chairman), Ms Emily O’ Reilly(Ombudsman), Mr John Purcell(Comptroller and Auditor-General), Mr Kieran Coughlan(Clerk of the Dail) and Ms Deirdre Lane(Clerk of the Seanad).


Misleading statements on the mode of appointments of European Commissioners in the Referendum Commission’s publicity material.

The  Referendum  Commission’s  web-site and  Voters’ Handbook are misleading in referring to EU Member States as being able to “nominate” members of the European Commission in the post-Lisbon European Union – see Page 5 of the Handbook. Lisbon  provides that Ireland’s present right to “propose”  a national Commissioner, and  in effect to have that proposal accepted by the other Member States if we are to accept their proposals (Art. 214, current TEC), would be replaced by a right to make “suggestions”  regarding a name, but with no guarantee that a particular suggestion would be accepted by the new President of the Commission, who would in future decide (Art.17.7 TEU).

The Commission’s Handbook to Voters states on page 5 that “At present, each Member State nominates  one member of the Commission”  and then goes on to say: “The right to nominate a Commissioner will rotate among the Member States on an equal basis.”  The use of the word “nominate”  to describe the  mode of appointment of  European Commissioners  pre-Lisbon and post-Lisbon is misleading,  for the Treaty amendment which  Lisbon proposes would remove from each  Member State  the right to decide, which they have at present, and replace it by a right to make “suggestions” only, which is a rather different thing.

This misleading nature of the phrase “right to nominate” –  which  means a right to propose and to decide –  in relation to the appointment of EU Commissioners pre-Lisbon and post-Lisbon  was brought privately to the Referendum Commission’s attention two weeks ago when it first appeared on the Commission’s web-site.  It is hard to understand why the same glossing over of the significant change the Lisbon Treaty would make in the mode of appointment of EU Commissioners should now be repeated in the Commission’s Voters’ Handbook.

The Referendum Commission is not telling Irish voters the full truth in this matter.


Mr. Justice O’Neill gets his facts wrong on the Laval/Vaxholm judgement of the EU Court of Justice.

We are informed that on yesterday’s RTE1’s lunchtime news at 1 p.m. Mr Justice Iarfhlaith O’Neill stated that the Laval/Vaxholm judgement of the EU Court of Justice was given before the Lisbon Treaty was signed and that he implied that it was not relevant to the Treaty.  In fact the Laval judgement was given on 18 December last, five days after the Lisbon Treaty was signed, so that it  could not have been taken into account or responded to by the States signing the Treaty.

The Lisbon Treaty copperfastens the case-law of  the EU Court of Justice. The Laval judgement could have been set aside by a Protocol to the Treaty if the Member State Governments had been aware of it and wished to do that, but that was impossible in view  of when the judgement was given.  That is why the only way the Laval judgement can now be set aside is by voters rejecting  the Lisbon Treaty and incorporating a Protocol in a later Treaty which would protect EU Member States, their Governments and  Trade Union movements from the likely adverse  effects of the Laval judgement on workers’ pay and condution.

Contrary to Mr Justice O’ Neill’s comments of yesterday therefore, the Laval/Vaxholm judgement is very relevant to the Lisbon Treaty and citizens’ attitudes to it.