Sunday, September 27, 2009

Reject Lisbon 2 next Friday

Seven days from now the fate of the Irish nation will have been determined. This generation will determine whether the independence won because of the sacrifice of the men and women of 1916 will have been but an interlude in Irish history, or whether 1916's vision of a small nation, cooperating with its European and international partners, will endure. Is Ireland to be returned to the colonial domination generations fought to end? Are we to betray not only the men and women of 1916-21 and the dead generations - but also the courageous peoples of France and the Netherlands - who themselves have experienced the oppression that comes with foreign rule - who stood shoulder to shoulder with us in rejecting the EU Constitution/Lisbon Treaty blueprint? That is the fundamental question facing the Irish people on Friday 2nd October. Here are my reasons for voting no:

1. Worker's Rights: Lisbon exacerbates the race to the bottom and promotes the exploitation of migrant labour - with all that implies for workers in host societies - to drive down pay and conditions. Article 6 of the Treaty on European Union as amended by Lisbon enshrines the Charter of Fundamental Rights into EU law on a level-footing with the Treaties. Furthermore, under the proposed Article 29.4.6 of the Irish Constitution (Paragraph 6 of the 28th Amendment to the Constitution Bill), EU law overrides national law and even the Irish Constitution. This means that the Charter will override the Irish Constitution and Irish law. The argument that Article 29.4.10 of the Constitution already makes EU law supreme over national law misses the point - namely, that as the scope of EU law increases with successive treaties, the effective meaning of such terminology changes, as the Irish Constitution is further eroded as ever more decisions can be taken in new areas that render the Constitution null and void, to all intents and purposes.

28th Amendment to the Constitution Bill Paragraph 6:
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—
i the said European Union or the European Atomic Energy Community, or by institutions thereof,
ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or
iii bodies competent under the treaties referred to in this section, from having the force of law in the State.

For the first time we are being asked to make the Charter of Fundamental Rights part of EU law, meaning that it will override the Irish Constitution. Article 15(1) of the Charter of Fundamental Rights appears to force Ireland to allow asylum-seekers to work. The fact that the UK has an optout from the Charter creates the prospect of Ireland and Malta being the only English-speaking EU countries to allow asylum seekers to work. That can only result in another large influx of cheap labour, and their exploitation at the hands of unscrupulous employers - themselves often the benefactors of politicians:

Article 6 TEU:
The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

Article 15(1) -Charter of Fundamental Rights:
Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

Furthermore, Article's 18 and 19 of the Charter appear to give the ECJ jurisdiction over asylum and immigration policy, notably the ban on "collective expulsions" in the latter:

Article 18 (Charter of Fundamental Rights):
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

Article 19 (Charter of Fundamental Rights):
1. Collective expulsions are prohibited.

2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
The political-elites argue that we have an optout from the common immigration policy by virtue of Protocol 21 on the Position of the UK and Ireland with respect to the European Area of Justice and Freedom. This ignores the fact that Paragraph 7 of the referendum-wording (proposed Article 29.4.7. of the Irish Constitution) clearly authorises the Government and the Oireachtas to abolish that optout Protocol:

28th Amendment to the Constitution Bill 2009, Paragraph 7:
The State may exercise the options or discretions—
i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies,
ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), and
iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 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.
We already have JHA optouts stemming from the Amsterdam Treaty. What is changing is that by voting "yes", we will be authorising the Oireachtas and the Government to abolish it. Indeed both FF and FG have indicated a desire to do so. Then Foreign Affairs Minister Dermot Ahern announced last year that the Government would "review" the optout within three years, and optin in unspecified areas. On her blog on April 1st 2009, FG Deputy European Affairs spokesperson Lucinda Creighton called for the Protocol to be abolished:

Dermot Ahern, former Minister for Foreign Affairs:
The Reform Treaty will also give full legal status to the Charter of Fundamental Rights. The Government has definitively resolved not to associate ourselves with a British Protocol on the Charter of Fundamental Rights. We see the Charter as an important statement of the Union’s values and are completely committed to it...We intend, in particular, to opt into future police cooperation measures. The aim is to retain our strong commitment to EU cooperation while giving ourselves options whenever our particular legal traditions may be called into question in an EU context. This in no way undermines our determination to press for effective EU action against serious cross border crime.

Lucinda Creighton (01 April 2009):
I urge the Taoiseach to reconsider the matter of justice and home affairs. This is too important for Ireland to opt out of and we must acknowledge that a mistake was made with that Cabinet decision. I hope it will be reconsidered in the context of the forthcoming Lisbon treaty referendum.

The Government's own commissioned research by Millward-Browne revealed workers-rights to be the biggest factor in the "No" vote. They have not been adequately addressed. All the Government has to show in this respect after almost a year-and-a-half of shuttle-diplomacy are two, non-binding statements from the European Council and the Irish Government stating that both attach "high importance" to workers' rights. That will come as news to the workers in the Laval/Viking cases, whose side the ECJ chose not to take with respect to the displacement of workers in Finland and Sweden by Latvian workers. In the Viking judgement, the ECJ referenced Article 28 of the Charter of Fundamental Rights, noting how it limits to the right to collective-bargaining. This provides us with a reality-check in contrast to the "Yes" side's tall-tales of the Charter as the pill for every ill in terms of workers' rights. In reality, it is a Charter of Bosses Rights, to facilitate the race to the bottom. It is, to put it simply, a Trojan Horse by political and corporate elites intent on undermining pay and conditions:Article 28 - Charter of Fundamental Rights:
Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

2. Democracy: Then there is the question of democracy. The French and Dutch peoples have already rejected 95% of these provisions by rejecting the discredited EU Constitution. A succession of pro-Lisbon elites have acknowledged publicly that the Constitution and the Treaty are basically the same in institutional terms. The removal of references to flag/anthem cannot erase that reality:

President Sarkozy of France, The Daily Telegraph, 14th November 2007:
A referendum now would bring Europe into danger. There will be no treaty if we had a referendum in France, which would again be followed by a referendum in the UK.

Dr Garret FitzGerald, former Taoiseach, Irish Times, 30 June 2007:
As for the changes now proposed to be made to the constitutional treaty, most are presentational changes that have no practical effect. They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum.

Anders Fogh Rasmussen, Prime Minister of Denmark, in Jyllands-Posten, 25th June 2007:
The good thing is that all the symbolic elements are gone, and that which really matters - the core - is left.

Bertie Ahern, former Taoiseach, Irish Independent, 24th June 2007:
They haven't changed the substance - 90 per cent of it is still there.

Angela Merkel, German Chancellor, speech to the European Parliament, 27th June 2007:
The substance of the constitution is preserved. That is a fact.

On those grounds alone, the Treaty could be condemned as anti-democratic. The French and Dutch peoples have not been asked a second time for their verdict on the Lisbon Treaty. Some on the yes side have sought to portray the election of President Sarkozy in 2007 as a vote for Lisbon. Yet Sarkozy only proposed a "mini-treaty". He never told his people it would be 95% the same as the rejected EU Constitution, or 10,000 words longer. A mini-treaty? Dutch polls continue to reject Lisbon by over 60% of the vote. If we vote for Lisbon, we are effectively consigning the self-determination of those nations to history. In doing so, we would be betraying not only those 2 nations, but also our own history of fighting for 700 years for self-determination. How can we deny to others what we sought for so long for ourselves?

The much-vaunted 'powers for national parliaments' and the Citizens' Initiative are also something of a joke. Under the Protocol on the Application of the Principles of Subsidiarity and Proportionality, each national parliament will have 2 votes in a sort of electoral-college. If one-third (25% in the case of certain aspects of Justice and Home Affairs) of all the votes of national parliaments (9 parliaments at present) agrees, they can object to draft EU legislation on the basis that it fails to meet the requirement of subsidiarity. The Commission is not obliged to review the draft legislation - though it "may" do so (bless 'em). If a majority of national parliaments makes such an objection, only then is the Commission obliged to review the legislation - but they are not bound to amend or withdraw the proposal. The so-called 'red-card' is that 55% of the Council or a majority of the European Parliament can force the proposal to be withdrawn by the Commission. But this too is worthless because, were opposition to the legislation so widespread, it would stand no chance of passing into EU law in any case. A blocking-minority under Qualified Majority Voting is 4 states including over 35% of the EU's population. Similarly, the Citizens Initiative (Article 11 TEU) can only propose legislation - it cannot force the EU to so legislate. A poor compensation for the removal of 50 areas of national sovereignty to Brussels through the loss of the veto:

Article 11 TEU:
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

3. Bogus 'guarantees': At a pro-Lisbon rally last Thursday night, European Affairs Minister Dick Roche attempted to compare the status of the 'guarantees' to that of the Good Friday Agreement saying:"The European Council in June last took a legally binding Decision addressing the Concerns of the Irish People on the Treaty of Lisbon. That Decision and the guarantees will be lodged with the United Nations under Article 102 of the UN Charter...In 1998, the Good Friday Agreement was also lodged with the UN under Article 102 of the UN Charter."

This argument conveniently ignores the fact that the Good Friday Agreement was immaterial to the constitutional structures of the European Union, unlike the Lisbon 'guarantees'. Furthermore, in what might be regarded as a test case for the 'international-agreement' thesis, the ECJ last year effectively declared that EU law superseded international law where a conflict arose:
an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community legal system.

While that ruling related to the annulment of EU regulations concerning the implementation of UN Security Council Resolution 1267 on freezing the assets of the AL-Qaida linked Al Barakaat International Foundation, it has clear implications for the Irish ‘guarantees’ because on September 3rd 2008, the ECJ effectively declared that EU law supersedes the UN. Remember – if the ECJ won’t even respect UNSC Resolutions – the highest instrument of international-law – then what chance they will respect the infinitely weaker contents of the ‘guarantees’, which we are told in any case is going to be an “international agreement” – and the ECJ – as quoted above – has made clear what it thinks of those. Comparisons with the Good Friday Agreement are bogus because it does not claim to “clarify” any aspect of the EU treaties. It is not material to the EU, and therefore not material to the Lisbon debate, despite erroneous attempts by figures like Dick Roche and Pat Cox to claim the contrary.

In any case, the Swedish Prime Minister let the cat out of the bag with an Irish Times interview with Jamie Smyth on 5th September 2009 where he acknowledged that in effect, all countries could retain a Commissioner without Lisbon via a "26+1" arrangement. This would see the 27th country receiving the position of High Representative for the Common Foreign and Security Policy, effectively replacing the External Relations Commissioner post.
Mr Reinfeldt said a “26 plus one option” was probably the best solution, whereby 26 states retain their commissioner and the 27th state is offered the post of high representative for foreign affairs instead. This would give all 27 countries a top EU job, while complying with the legal condition for an EU executive of less than 27 members, which is stipulated in the Nice treaty.

4. Loss of sovereignty:The Lisbon Treaty also transfers 50 areas of national sovereignty to Brussels via the expansion of Qualified Majority Voting to those areas. Those not subject to Irish optouts include: Freedom of movement for workers, social security benefits, Agreement for the withdrawal of a Member State, Energy, Arrangements for the implementation by the Union of the solidarity clause in case of terrorist attack or natural disaster, Implementing measures for the system of own resource. But that is only part of the story. By far the most disturbing element of the erosion of the veto are the implications for Irish sovereignty of the surrender of the Justice and Home Affairs. What is changing with this referendum is that - for the first time - we are being asked to insert into our Constitution wording that would allow the Government and Oireachtas to abolish those vetoes, by abolishing the optout Protocol contained in the Lisbon Treaty. There is something terribly ironic about being told there is an optout while being asked to vote to allow the Government to abolish it. Some will argue that the invocation of those provisions depends on the configuration of parties in office at the time. But as explained above, Dermot Ahern announced a review of the optout within 3 years, while on April 1st 2009, Lucinda Creighton called for the Protocol's outright abolition. Should the Protocol be abolished, that would mean sensitive areas of Justice Policy, including Border checks, Asylum and Immigration, Incentive measures in the field of crime prevention, the powers of Europol and Eurojust, Judicial cooperation in criminal matters and harmonisation of legislation on criminal matters, offences and sanctions. If it is not the Government's intention to remove the optout, then why include in the referendum wording a specific power for the Oireachtas and Government to do just that?

As far as I am concerned there is no smoke without fire. It should be noted that under the Amsterdam Treaty (which came into force in 1999), Ireland already has the right to optout/in of common policies in the areas of asylum and immigration, civil-law and border-controls. What is changing is that we are being asked to entrust the politicians with the power to abolish even the right to optout on Justice and Home Affairs in future by surrendering Protocol 21. One way or another, if you approve the amendment before us next Friday, Ireland will find itself reduced to having a pathetic 0.8% say in policies on Justice and Home Affairs, and the ECJ will become a Federal Supreme Court with the full range of provisions of the Charter of Fundamental Rights in this area as its window to interfere in our affairs with respect to Justice policy, especially in the areas of asylum and immigration.

Disturbingly for the Irish economy, Article 207 of the TFEU as amended by Lisbon clearly abolishes the veto on commercial-policy, and it becomes an exclusive competence of the EU. That will endanger efforts by the IDA to attract investment to Ireland - a particular cause of concern in the light of the fact that the European Commission has just approved €55 million in state-aid for the relocation of Dell jobs from Ireland to Poland. We cannot - particularly in these recessionary times - afford to risk FDI in Ireland. Despite the economic downturn, FDI has held up well in the recession.

Article 207 TFEU
1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.
2.The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 218 shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules. The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international agreements in the field of transport shall be subject to Title VI of Part Three and to Article 218.
6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation

This means that the veto on WTO agreements is gone, except where agreements on FDI "include provisions for which unanimity is required for the adoption of internal rules or where agreements "would threathen the EU's "cultural and linguistic diversity", or where agreements in the areas of social, health and education policy would "risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.", Such criteria are subjective. Article 207 endangers the livelihood Irish farmers with respect to competition from cheap imports, notably of Brazilian beef, despite concerns about its safety. The latest EU commission Food and Veterinary Office Report found that half of all holdings inspected failed to meet EU requirements on the important issues of registration, traceability and movement controls.

5. Taxation:Article 311 of the TFEU as amended by Lisbon authorises the European Council to establish a "system of own resources of the Union", and to "abolish an existing category" and create new ones. This sounds to me suspiciously like empowering the Council to impose Europe-wide taxation:

Article 311 TFEU (as amended):
The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
Without prejudice to other revenue, the budget shall be financed wholly from own resources.
The Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament adopt a decision laying down the provisions relating to the system of own resources of the Union. In this context it may establish new categories of own resources or abolish an existing category. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements. The Council, acting by means of regulations in accordance with a special legislative procedure, shall lay down implementing measures for the Union's own resources system in so far as this is provided for in the decision adopted on the basis of the third paragraph. The Council shall act after obtaining the consent of the European Parliament.

Article 113 of the TFEU as amended by Lisbon also contains measures for the harmonisation of taxation, to "avoid distortions of competition". While theoretically, Ireland has a veto, in practice this new objective could be used by the European Commission to take Ireland to the ECJ for a breach of internal-market rules outlawing Ireland's 12.5% corporate-tax as such a "distortion of competition. I would also contend that Tax Commissioner Laslo Kovacs plan for CCCTB (destination-taxes on exports payable to the country of destination) would be on firmer legal-ground if challenged by Ireland in the ECJ, as he could argue it is needed to combat the "distortion of competition" created by our corporate-tax rate.

Article 113 TFEU:
The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.

Commissioner Kovacs has claimed he has enough support to invoke Enhanced-Cooperation (requiring the support of 8 countries and the consent of the Commission) to push CCCTB through without unanimity. This is not a time to be endangering the tax-sovereignty of this troubled country.

At the end of the day, it is the 28th Amendment to the Constitution that we are voting on, and a longterm perspective is needed. The elites that pushed the Act of Union through the Irish Parliament promised, among other things, Catholic Emancipation. That we waited 29 years afterwards before it was granted, and that we endured a catastrophic famine, ought to act as a warning of what can become of small nations that relinquish their sovereignty. It is a lesson we should have learned by now. For 20 years after joining what is now the European Union, this country continued to export its people and suffer mass-unemployment. Most no voters favour EU membership, but are sufficiently clued-in to recognise it is not a panacea (as the Swiss economy demonstrates) and that Boston contributed at least as much to our eventual prosperity as Berlin. I call on the Irish people to reject the Lisbon Treaty. Do not cede longterm sovereignty, won at an enormous cost by the dead of 1916 and seven centuries before, because of phantom myths and fairy-godmothers of economic recovery concoted by the our political, media and in some cases union-elites. Remember Adam Smith's old adage:
People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.

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