28th Amendment of the Constitution (Treaty of Lisbon) Bill Speech by Minister for Foreign Affairs
28th Amendment of the Constitution (Treaty of Lisbon) Bill
Speech by the Minister for Foreign Affairs, Micheál Martin T.D.
8 July 2009
I move to read the 28th Amendment of the Constitution (Treaty of Lisbon) Bill 2009 a second time.
It is an honour for me to introduce this Bill. Its purpose is to provide for the holding of a referendum on October 2nd which would allow the people to vote on the Lisbon Treaty.
As the House knows, the people of Ireland voted last June not to ratify the Treaty of Lisbon by 53.4% to 46.6%. The turnout was 53%. The Government respects the decision of the people as expressed in that referendum. Everything we have done since last June has been motivated by a desire to understand the reasons behind the referendum result and to find ways of accommodating the concerns that arose last year.
Democracy is about providing leadership. That is what we are elected to do. In respecting the will of the people, the Government has also had regard to the desire of other Member States – our European partners - to see the Treaty of Lisbon enter into force. As members of the Union, we could not just walk away from the Lisbon Treaty as some would have us do. That is not the way the Union works. It depends on agreement between the Member States and thrives on an unremitting search for consensus, no matter how difficult the situation may be.
Over the last 12 months the Government has worked hard to find a way forward which would give us what we wanted and could be accepted by all 27 Member States.
The all party Oireachtas sub- Committee delivered a comprehensive report on Ireland’s Future in the European Union on November 27th last . The Government also began a process of consultation with the other Member States, especially the Presidency, and with the Union’s institutions, aimed at identifying a solution that would deal with Ireland’s concerns and also enable the Lisbon Treaty to come into effect.
Our research found that the main reason for voting No or abstaining in last year’s referendum was lack of knowledge of the Treaty. Yes and No voters were united in their criticism of what they viewed as a dearth of clear, accessible information on the merits of the Treaty.
After intensive contacts and negotiations, the European Council in December 2008 defined a path to allow the Treaty to enter into force by the end of 2009. Our EU partners said this would allow time to address the concerns of the Irish people .
The Council agreed that, provided the Treaty enters into force, a decision will be taken to the effect that the Commission shall continue to include one national per Member State. This represented a clear and positive response to a key concern that arose last year.
This was a considerable win for Ireland as some member States, favoured a smaller Commission. Yet they were willing to accommodate Ireland on this point, because they accepted that his had been a real issue during our referendum campaign last year.
The European Council also agreed that legal guarantees would be given on three key points which had been highlighted by the Taoiseach as being of significance to Irish voters. These were that:
· nothing in the Treaty of Lisbon makes any change of any kind, for any Member State, to the extent or operation of the Union’s competences in relation to taxation;
· the Treaty of Lisbon does not prejudice the security and defence policy of Member States, including Ireland’s traditional policy of military neutrality;
· the provisions of the Constitution of Ireland in relation to the right to life, education and the family are not in any way affected by the Treaty of Lisbon.
In addition, it was agreed that the high importance attached by the Union to social progress, the protection of workers’ rights and public services would be confirmed.
The legally binding guarantees that Ireland negotiated are in the form of a Decision of the Heads of State and Government. The Council further agreed that the contents of this Decision will be incorporated in a Protocol to be attached to the EU Treaties after the entry into force of Lisbon. This will happen at the time of the next EU accession treaty.
The guarantees make clear beyond doubt that:
· the protections in the Irish constitution on the right to life, education and the family are not in any way affected by the Lisbon Treaty.
· Ireland retains control of our own tax rates; and
· Ireland's traditional policy of military neutrality is unaffected by the Treaty.
The Council also adopted a substantive solemn declaration on workers’ rights and social policy. The solemn declaration is designed to deal with the confusion that exists about the impact of the Lisbon Treaty on workers’ rights.
Let me be clear. The Treaty represents a real advance for workers’ rights. This is because of the Treaty’s new horizontal social clause, which was originally inserted at Ireland’s behest, and because it gives legal effect to the Charter of Fundamental Rights.
We should remember that much of the development of Irish labour law has come about on the back of our EU membership. The Lisbon Treaty represents a genuine further advance in this area.
The decision of the Heads of State and Government on the legal guarantees constitutes an international agreement. The European Council has made clear that the guarantees are legally binding and that they will take effect on the date of entry into force of the Lisbon Treaty.
If we want to have legally binding agreements on the right to life, the protection of the family, taxation and our traditional policy of military neutrality, and if we want to retain our Commissioner, we should move to ratify the Treaty. Without the Lisbon Treaty, we will have no automatic right to a Commissioner and no legal guarantees.
If a second referendum is successful, both the Treaty and the Decision will be registered with the United Nations under Article 102 of the Charter of the United Nations. Article 102 provides that all international agreements to which UN Member States are party should be registered with the UN Secretariat after their entry into force.
The Heads of State and Government agreed that the legal guarantees will be set out in a Protocol to the Treaty on European Union and the Treaty on the Functioning of the European Union at the time of the conclusion of the next accession treaty, which will probably be in 2010 or 2011. As a Protocol, the legal guarantees will enjoy the same status in EU law as the Treaties. They will form part of the fundamental law of the Union.
The Government is of the view that we should put the Lisbon Treaty, and the package of measures provided for in the proposed constitutional amendment, to the people again for their approval. We trust that the House will support us in that view.
The Government’s firm view is that the Treaty is good for Ireland and good for Europe. Since last year, the situation has changed considerably. We now have explicit, legally-binding guarantees. It will allow us to retain our Commissioner. We have the solemn declaration on workers’ rights. Finally, we will have a Protocol at the time of the next accession Treaty. The context in which we will be making our decision about the Treaty has also changed. Economic circumstances are now dramatically different from the situation that applied 12 months ago and the reforms provided for in the Lisbon Treaty are therefore now more important than ever.
The onus is now on each and every member of this House who believes in our European future to take this Treaty to the people and to explain its importance for Ireland. We need to engage with the public more effectively than we did last year. We need to inform them about our much improved package and ask them for their endorsement so that the Lisbon Treaty can come into effect by the end of this year. Our future in Europe – indeed, our future – depends on being able to join with our 26 EU partners in ratifying this Treaty.
The Bill before the House is a relatively short piece of legislation, containing only two sections. Section 2 of the Bill simply provides the citation of the proposed amendment and the title of the Bill itself. The substance of the Bill is contained in section 1 which proposes that Article 29, section 4, subsections 3 to 11 of the Constitution be amended and I am happy to explain to the House how we propose to do so.
Article 29 of the Constitution covers Ireland’s international relations and the provisions I have just mentioned deal with our membership of the EU.
It is more than 35 years since Ireland joined the European Union. Over that period the Union has been at the centre of our engagement with our fellow EU members and with the rest of the world. The Lisbon Treaty sets out for the first time a clear and succinct statement of the Union’s values. The Union’s values are our values. After 35 years of membership, the Government considers it both timely and appropriate to set out an updated version of our constitutional arrangements relating to the European Union.
Accordingly, the relevant provisions of Article 29, section 4, which have been amended on four occasions since we joined the European Union, becoming increasingly complex on each occasion, are being replaced in their entirety. The new provisions set out in a streamlined and more user-friendly form how our engagement with the EU is to be governed.
It is proposed that part of subsection 3 dealing with the European Coal and Steel Community, the European Economic Community and the Single European Act be deleted as well since the references are now redundant. The other subsections dealing with our membership of the EU – subsections 4 to 11 will be replaced with new subsections 4 to 9, which are set out in a Schedule to the Bill. Part 1 of the Schedule contains these new texts in the Irish language and Part 2 contains the text in English.
A proposed new subsection 4 would contain a short statement of our commitment to the Union “within which the member states … work together to promote peace, shared values and the well-being of their peoples.”
This reflects our highly positive experience of membership going back to 1973. It is in keeping with the values set out in section 1 of Article 29, which affirms Ireland’s devotion to peace and friendly cooperation amongst nations founded on international justice and morality.
The proposed new subsection 5 of Article 29, section 4 provides that the State may ratify the Lisbon Treaty and be a member of the Union established by that Treaty. Since the Treaty establishes a new Union with legal personality, it is proposed that the current subsections 4, 5 and 7 providing for the ratification of the Treaties of Maastricht, Amsterdam and Nice be deleted as they will be made redundant by Lisbon.
The proposed new subsection 5 would take effect after a successful referendum whereas the rest of the amendments provided for in the Bill would have effect only when and if the Treaty enters into force, following its ratification by all 27 Member States.
The proposed new subsection 6 ensures legal compatibility between the Lisbon Treaty and the Constitution. It carries forward constitutional cover for laws, acts and measures “necessitated” by the obligations of our EU membership.
This provision is not new. It is as old as our EU membership. Every time we ratify a European Treaty – the Single European Act, Maastricht, Amsterdam, Nice and now Lisbon – we make the same point. Every time the same claim is made that – suddenly – EU law will be superior to Irish law and the Treaty will put the Irish Constitution out of business. Each time the opponents have been wrong and they are wrong again this time.
The idea of primacy reflects a general principle of international law, recognised since 1937 by Article 29.3 of the Constitution of Ireland. This provides that States must comply with international legal obligations freely undertaken by them in the exercise of their sovereignty. The practical effect of the principle of primacy is that it offers certainty and clarity regarding the relationship between the Union’s laws and those of the Member States. It applies only in those specific areas where the Member States have conferred powers on the Union.
This principle of conferral is an important feature of the Lisbon Treaty. It makes it clear that the Union does not have any powers of its own. Its powers derive from sovereign decisions by the Member States to give the Union certain powers.
These powers are carefully set out in the EU Treaties. This is why EU Treaties tend to be somewhat complex. They need to regulate relations between 27 sovereign States and their unique partnership within the Union.
Let me make it absolutely clear . The Constitution of Ireland will continue to be the basic legal document of the State and will continue to determine, in the final instance, the precise relationship between Irish and EU law. The ultimate locus of sovereignty will continue to reside with the Member States rather than the Union.
The proposed new subsection 7 reflects similar sub-sections introduced to facilitate ratification of the Amsterdam and Nice Treaties. It replaces the current subsections 6 and 8. It allows the State to exercise certain options and discretions provided for in the EU Treaties. These include special arrangements Ireland has negotiated with respect to Justice and Home Affairs, which is referred to in the Lisbon Treaty as the EU’s "area of freedom, security and justice". The Government may only exercise these options and discretions after obtaining the approval of both Houses of the Oireachtas.
These arrangements provide for the participation of Ireland and the UK on a case-by-case basis in the following policy areas:
· general provisions for co-operation in the area of freedom, security and justice;
· policies on border checks, asylum and immigration
· judicial co-operation in civil matters
· judicial co-operation in criminal matters
· police co-operation
We have consistently given strong support for EU action against terrorism and organised crime and we made a Declaration at the Inter-Governmental Conference in 2007 that makes clear our intention to participate to the maximum extent possible in the relevant proposals in these areas.
Furthermore, we have given a commitment that we will study the evolution of EU policy in this area and review our opt-out within three years. Ending the opt-out, in whole or in part, is one of the options covered in the proposed new subsection 7.
The options and discretions also include the possibility of participating in a process known as “enhanced cooperation.” Enhanced cooperation allows a group of nine or more Member States to choose to cooperate on a specific matter in areas in which the Union has non-exclusive competence. Enhanced cooperation cannot expand the Union’s competence.
The proposed new subsection 8 relates to the so-called passerelle clause under which the European Council can decide on a unanimous basis to extend the scope of Qualified Majority Voting in the Council of Ministers or to extend the scope of co-decision arrangements between the Council of Ministers and the European Parliament. The mechanism may be applied in the following areas:
· the adoption of qualified majority voting or co-decision, subject to a right of veto by each national parliament;
· the common foreign and security policy (but not “decisions having military or defence implications”);
· judicial co-operation in regard to family law (where Ireland has an opt out with the right to opt in on a case-by-case basis);
· social policy;
· fiscal measures relating to the environment;
· the adoption of the multi-annual financial framework; and
· within the ambit of an enhanced co-operation process.
The subsection also gives specific cover for certain measures taken in the area of freedom, security and justice. These are:
· the extension of the scope of judicial co-operation on aspects of criminal procedure with a cross-border dimension;
· the identification of other areas of serious crime with a cross-border dimension;
· the establishment of a European Public Prosecutor (EPP) or the expansion of the EPP’s role.
Areas relating to the area of freedom, security and justice covered in subsection 7 are mentioned again in subsection 8. This is being done so as to retain control by the Houses of the Oireachtas over these measures, if we should decide at some point to end our opt-out in the area of freedom, security and justice.
During the negotiation of the Treaty, it was recognised that the role of national legislatures would be crucial in this respect. The Treaty will give the national parliaments of the Member States a direct input for the first time into European Union legislation. These new provisions are contained in two additional Protocols, one on the role of national parliaments and the other on the application of the principles of subsidiarity and proportionality.
Under the Protocol on the role of national parliaments, all Commission Green and White Papers, the Commission’s annual legislative programme, and all draft legislation will be sent directly to national parliaments. This will be done at the same time as they are being sent to the Council and to the European Parliament. This requirement for direct and simultaneous transmission is new. It is intended to give national parliaments more time for consideration of Commission proposals. The same procedure will apply to the annual report of the Court of Auditors.
The agendas for and outcomes of meetings of the Council of Ministers must also go directly to national parliaments. Except in cases of urgency, at least eight weeks must elapse between the forwarding to national parliaments of a piece of draft EU legislation and it being placed on a Council agenda for decision. There should normally be a ten day gap between the publication of an agenda and the taking of a decision. This is intended to give national parliaments more time for the consideration and debate of proposals.
Additionally, the Treaty provides that national parliaments must have at least six months notice of any intention on the part of the European Council to use the provisions of the Treaty relating to voting in the Council of Ministers and extension of the co-decision procedure between the Council and the European Parliament.
Unanimity is also required in the European Council for any such move. This means that under the Treaty Ireland has a double veto, exercisable by either the Government or the Houses of the Oireachtas. Furthermore, under the terms of the proposed new subsection 8, the prior approval of both Houses of the Oireachtas will be required before the Government can proceed with any such proposal. This means that Irish parliamentarians have more than the negative veto provided by the Treaty – the Government will be required to seek affirmatively their permission before the Taoiseach can commit himself to any change in the European Council.
The Protocol on the Application of the Principles of Subsidiarity and Proportionality further develops the role of national parliaments in relation to the implementation of these important principles. The principle of subsidiarity is designed to ensure that the EU takes action only when this is necessary and appropriate.
Within eight weeks of the transmission to it of a draft legislative act, any national parliament, or any chamber of a parliament, may send to all EU institutions a “reasoned opinion” stating why it considers that the draft does not comply with the principle of subsidiarity. Account must be taken of these reasoned opinions.
If, within eight weeks, at least one third of national parliaments (or of chambers of national parliaments) issue such reasoned opinions, the draft proposal must be reviewed. It may thereafter be maintained, amended or withdrawn. In the case of proposals in the areas of judicial co-operation in criminal matters and police co-operation the threshold is one quarter.
This so-called “yellow card” system is a major development which will bring national parliaments directly into the EU decision-making process.
In recognition of the particular sensitivity of freedom, security and justice matters, the Lisbon Treaty contains a number of specific provisions associating national parliaments more closely with the Union’s activities in this area. National parliaments are to be kept informed of evaluations of the Member States’ implementation of Union policies in the area of freedom, security and justice, in particular to facilitate full application of the principle of mutual recognition. They are also to be kept informed about the work of a standing committee established to promote and strengthen co-operation on internal security
Furthermore, a separate procedure applies where EU legislation is adopted by means of the so-called ordinary legislative procedure. If a simple majority of national parliaments take the view that a proposal breaches the principle of subsidiarity, the proposal can be maintained, amended or withdrawn. If the Commission decides to maintain its proposal, it must submit its reasons to the Council and the European Parliament, which will take a majority decision on how to proceed. The European Parliament will act by a majority of votes cast and the Council will act by a majority of 55% of its members. This is the so-called “orange card” procedure.
The various provisions I have just mentioned will expand very significantly the role of the Oireachtas in EU affairs .In order to meet these responsibilities and reforms ,I believe it is essential that every cabinet Minister should appear before the Oireachtas Committees prior to and after Council meetings in order to brief members .
I am aware of proposals from Fine Gael and Labour on scrutiny and how directives are transposed in Ireland and I look forward to further discussions in the Oireachtas in the months ahead on the arrangements for discharging these new responsibilities.
The proposed new subsection 9 repeats the prohibition on Irish participation in an EU common defence. This provision was originally inserted in the Constitution at the second referendum on the Treaty of Nice. A change in Ireland’s position can only come about if the Irish people decide so in a referendum.
As I have already explained to the House, the Government has now secured an additional legal guarantee which makes clear that the Lisbon Treaty “does not affect or prejudice Ireland’s traditional policy of military neutrality.” The same guarantee makes clear that the Treaty “does not provide for the creation of a European army or for conscription to any military formation.”
In May, Peace and Neutrality Alliance said there would be a “Yes” vote on Lisbon if there was a legal guarantee on neutrality. We got that last month. In April, the same alliance urged us to insist on a Protocol. We got that too. Let me quote again from our legally-binding guarantee, soon to be enshrined in a Protocol. It states:
“The Treaty of Lisbon does not affect or prejudice Ireland’s traditional policy of military neutrality . . . The Treaty of Lisbon does not provide for the creation of a European army or for conscription to any military formation . . . It does not affect the right of Ireland to determine the nature and volume of its defence and security expenditure.”
I repeat: no European army; no conscription; and no obligation to increase our defence spending. These represent important, explicit assurances. Fair-minded people will, I believe, see them as putting to rest the various concerns about defence and security that surfaced last year.
Finally, Ceann Comhairle, the proposed amendment would delete subsection 11 of Article 29, section 4 which allows the State to ratify the Agreement relating to Community Patents. This Agreement never came into force.
The text of this Constitutional amendment is relatively accessible. It is available on our website www.lisbontreaty.ie together with the texts of the Treaties and our White Paper which tries to explain as clearly as possible the provisions of the Treaty.
We have a duty to inform voters of the Treaty’s contents and implications. We will spare no effort over the coming months to help voters make their own assessment of the Lisbon Treaty and the important legal guarantees that now accompany it. I hope that the electorate will go beyond the detail and look at the big picture.
Who can dispute the enormous positive influence that membership of the European Union has had on our country? Our farming community has benefited to the tune of €41 billion from the Common Agricultural Policy. A further €20 billion has come to Ireland in structural funding.
If you’ve taken the Luas from, say, Connolly Station to Tallaght, that’s a product of EU funding.
If you’ve ever driven on any of the 550 kilometers of motorway we now have in this country, you can thank Europe for its contribution.
Thanks to the European single market, Irish companies have doubled their exports over the last 10 years and we have attracted a huge amount of foreign investment. Cutting red tape and transaction costs across the market of 500 million consumers has brought enormous opportunities for Ireland and created hundreds of thousands of jobs.
Membership of the euro means our exporters face no exchange rate risks when they sell their products within the euro-zone.
The European Central Bank has kept interest rates low and has provided valuable liquidity to our banks during the financial crisis.
The European Union has funded 5,300 projects to help the peace process in Northern Ireland and many of these have transformed communities in the border counties.
Funding from the European Union for the LEADER programme has given rural communities greater control over their own futures.
Irish universities and research groups in the public and private sectors are currently involved in a €600 million research programme. This is cutting-edge research aimed at supporting industry and creating the jobs of the future.
The Union has poured millions into waste recovery and recycling facilities across the country. As a result, we have a cleaner environment.
Thanks to the European Social Fund, FÁS, the Vocational Education Committees and our universities are able to provide training and up-skilling for 160,000 people in the workforce.
Europe is backing the national broadband scheme which is involved in providing access to affordable broadband services in rural communities.
Thanks to action by the European Commission, following lobbying from Ireland, roaming charges are coming down.
It is fair to say that our EU membership has helped transform our country. We would not be what we are today without our tradition of active and constructive European engagement. This is something we need to continue.
Looking back at our experience, we can safely say that the European Union has, indeed, been faithful to the commitment it shares with the Member States to work together to promote peace, shared values and the well-being of their peoples.
The Lisbon Treaty is the culmination of almost 10 years of discussion about institutional issues. These issues are important. Europe needs a properly functioning Union if it is to cope with the challenges of the future. Now that we have 27 Member States, we need to make adjustments in the way the Union operates. Getting the balance right means making sure the Union can deliver better for us in the years ahead.
The Union has a very positive track record, but it can do better. The Lisbon Treaty will give it the capacity to do better.
Over the last year our European partners have shown great understanding for Ireland as they listened carefully to our concerns and agreed to accommodate them.
Europe said Yes to us last month. I hope that, when the time comes, our people will be able to say Yes to Europe. A positive outcome in the autumn will be vital for Ireland and for Europe.
I look forward to the day when we can turn away from debates about the EU’s structures and concentrate on its deeds. There is much to be done in dealing with the economic and financial crisis, with the challenges of climate change and with the risks we face in the area of energy security.
I look forward to today’s debate. Deputies from all parties have much to offer. I hope today’s proceedings will set the tone for a mature, facts-based debate in the months ahead.