OPINION:Guarantees to Ireland on critical issues strengthen case for a Yes vote in referendum, writes DAVID BYRNE
THE LISBON Treaty has been a long time in the making. Its fate now rests with the Irish electorate on October 2nd.
When I joined the European Commission in 1999, 10 years ago, there were only 15 members states of the European Union. Two enlargements have taken place since then, adding 12 new member states. Reform of the governance of the EU was clearly necessary.
A proposed constitutional treaty proved unacceptable and following resumed negotiations a modified treaty emerged. The Lisbon Treaty differs from the constitutional treaty in that it is a series of amendments to the existing EU treaties rather than a constitution for Europe. Essentially, Lisbon is designed to make the EU more effective, democratic and influential on the international stage.
One of the key issues on October 2nd is the extent to which this year’s package differs from the one rejected last year. This hinges on an assessment of the guarantees and assurances secured by the Government in June. There are those who dismiss them as irrelevant, but I see them as making a significant difference because they alter the terms and conditions of the Lisbon Treaty as applied to Ireland.
Two important adjustments have been made since last year. First, the European Council has agreed that, if Lisbon is ratified, they will ensure each EU country will continue to have the right to nominate a European commissioner. This commitment, which cannot be fulfilled without the ratification of Lisbon, is of indefinite duration and cannot be changed without Ireland’s express agreement.
As a former EU commissioner, I see this move as a positive development and consistent with the views of those who voted on the last occasion. Having a person from each member state around the table gives the commission an inbuilt understanding of the diversity of the EU, whose needs the commission is appointed to serve.
The commission’s role within the EU is much misunderstood. There are those who suggest that it is hell-bent on enhancing its powers. The reality as I experienced it is quite different.
The commission is a kind of referee whose prime role is to ensure a level playing field for all member states. Indeed, the commission has always been a particular friend of smaller EU members like Ireland. It acts as an impartial source of proposals for EU policies, but it is not the legislator. This task is undertaken jointly by member states’ governments and elected members of the European Parliament. I am, therefore, mystified by those who maintain that the EU is undemocratic, when nothing could be further from the truth.
For instance, a commissioner is appointed by a democratic process involving nomination by the government of each member state, approval by the European Council comprising heads of all governments and, crucially, following hearings in the European Parliament. Democratic accountability is assured by the commission being responsible to the European Parliament where, if appropriate, a motion of censure of the commission would require its resignation.
Throughout my five-year tenure I had a legislative agenda requiring me to attend the European Parliament during each of its monthly plenary sessions. Parliamentary committees also required me to report on issues of consumer concern, such as foot and mouth disease, BSE, Sars, and other such urgent threats to human or animal health.
The second adjustment since last year is that legally-binding guarantees have been provided to Ireland in relation to taxation, military neutrality, and the provisions of the Irish Constitution relating to the right to life, education and the family.
There is a degree of confusion surrounding the status of these guarantees. A two-step process is involved. Initially, the guarantees will take the form of an international agreement between member states. This is the same arrangement as Denmark negotiated in 1992 after it rejected the Maastricht Treaty. On foot of that arrangement, the Danish people subsequently voted to ratify Maastricht.
The Government has said this agreement will be registered with the UN under Article 103 of the UN Charter. This is an important move, which has significant Irish precedents. The Belfast Agreement in 1998 was registered with the UN and I recall this move reassured Sinn Féin as to the legal standing of the agreement.
Indeed, the Anglo-Irish Treaty of 1921 was registered with the UN’s predecessor, the League of Nations, in 1924 and this registration was seen as a significant assertion of Ireland’s newly established sovereignty. The agreement with our EU partners has clear legal significance and the European Court of Justice would have regard to it in interpreting the treaty.
I have heard it argued that these guarantees will not change the treaty but, in my view, that is not the case because it has been agreed our guarantees will become a protocol attached to EU treaties and will represent an addition to primary EU law. It will have equal standing and enforceability with other elements of EU treaties.
My assessment of the Lisbon Treaty is that it contains a set of reforms that will make the EU function more effectively in the collective interests of member states. As the German constitutional court recently made clear, it is an adjustment to the European Union’s rulebook and not a major step towards a federal Europe as detractors allege.
Indeed, I would say the Lisbon Treaty clarifies the distinctive nature of the EU by ensuring the powers not conferred on the EU remain with member states. This means that the member states remain in full control of the further evolution of the EU.
A key point to recall is that the EU is essentially a unique political project. It is founded on the goodwill and co-operation of member states. Those who maintain that everything will remain the same for Ireland if we vote No a second time ignore the union’s political nature. The reality is that a No vote would kill off the Lisbon Treaty and also jeopardise Ireland’s status within the EU.
It would send a signal to our fellow EU members that we are unable to agree with them on the future direction of the European Union. It would spread confusion within the international investment community about Ireland’s attractiveness as a European investment location. That would be an unfortunate outcome and one we should strive to avoid when we go to the polls next week.
David Byrne SC was attorney general from 1997 to 1999 and EU commissioner for health and consumer protection from 1999 to 2004