Dodgy bits of the Lisbon treaty: self-amending

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One of the big complaints of the "No" crowd is that the Article 48 of Lisbon treaty (again politics.ie is still down so linking to Libertas's copy of this article) makes the EU treaties self-amending. The result being that this is the last referendum we'll ever need, from now on the EU can change itself without consulting us.

This appears to be wrong although I still think there is an element of dodginess. Here's what we're getting.

Article 48

An Article 48 shall be inserted to replace Article 48 of the TEU:
"Article 33


1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

2. The government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

Simplified revision procedures

6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.

The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.

7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.".

First of all, anyone who writes 'An Article 48 shall be inserted to replace Article 48 of the TEU: "Article 33 ...' needs help and this is the type of thing that makes me really object to this whole thing on grounds of comprehensibility but that's for another post.

The key to this seems to be that both revision procedures (ordinary and simplified) state that any revisions must be approved "by the Member States in accordance with their respective constitutional requirements". So it seems pretty clear that nothing can change that would go against our constitution without a referendum. The "No"s appear to be legally wrong here but there is dodginess here indeed.

In the past, all amendments to the EU treaties have been put as referenda due to the "Crotty Judgement" which I gather said that we can't transfer sovereignty in any area to the EU without a referendum. The implication being that all the treaties involved some transfer of sovereignty. Of course not everything in the all the treaties involved that but they come as a package so we got a referendum even on the parts we could have passed in the Dáil. We could have chopped out certain parts of them and avoided the referenda. In fact they chopped out some parts of the Constitution to make Lisbon and thus avoided a referendum in France and Holland. [Updated: This is not actually the case, there was no need for a referendum in France first time around but they had one anyway, the changes between the EU Constitution and Lisbon were arguably trivial - the government just decided not to have a referendum the second time around - fuck you democracy!

It's likely we would have a referendum on all future EU treaties too - they are such a pain to get organised that the EU stuffs as much as possible into them. The result is that they will probably always contain something somewhere that requires a referendum. There's also the fact that people are just used to it and as I said in the previous post, if we passed an EU treaty without a referendum, people would be somewhat miffed.

Article 48 solves that "problem". From now on, the EU can quietly and quickly amend the treaties in lots of ways without the need for a treaty and therefore without triggering a referendum in Ireland. Only certain kinds of changes will require a referendum and those changes will no longer be bundled along with all of the others. From my vague understanding of Crotty, it would only be changes which add new areas of competence to the EU that would require a referendum. Changes in policy would not.

Article 48 would not allow the EU to start regulating religion or abortion for example (TBH I'm guessing but these seems like two areas we're fairly sure on) because it doesn't currently have powers in those area. It does however have power to regulate the environment and so Article 48 would allow the EU to switch from liking the environment to hating the environment (to pick an exaggerated example) with no referendum in Ireland - of course they would still need to get it past the national parliaments (unanimously or in qualified majority, depending on the area) but that's not as strong a situation as we have now.

So Article 48 is not the what the "No"s claim it is, however it seems like it really does change what say The People will have on the contents of future EU treaties compared to the say we have had in the past. Since I haven't heard anyone discussing the points I make here, just lots of "yes it is", "no it isn't", I consider it dodgy on 2 grounds

1. The "Yes"s are dismissing this as not changing the status quo - yet another black mark against the "Yes"s and by association against the treaty.
2. The real implications of this are not being debated at all, only the caricatures, it could actually be pretty undesirable - I'm not sure - which is good enough reason for me to say "No".

Dodgy bits of the Lisbon treaty: majority voting

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For this point I am inferring things from the FAQ's on the Dept of Foreign Affairs' pro-treaty explanatory website (pro-treaty might be arguable but they certainly have a shiny-happy take on all of it). I simply could not be arsed trying to dig this stuff out of the text of Lisbon and the post-Lisbon version (I've had trouble finding a definitive pre-Lisbon version of the treaties being amended, the ones I can find are unclear whether they're before or after Nice).

We are moving from unanimous to majority voting in various areas, this is supposedly to allow work to get done. I don't think there's anything dodgy about this, you either agree with it or you don't.

What seems dodgy is what happens once the treaty is ratified. The areas which only require majority voting can change. I deduce from

13. What role does the Reform Treaty give to National Parliaments?

The Treaty gives a new role within the EU to national parliaments. All proposals for EU legislation will be forwarded to national parliaments for their consideration. National parliaments will have a period of 8 weeks in which to vet proposals and offer opinions on them. If enough national parliaments object to a proposal, it can either be amended or withdrawn. Any national parliament can block moves to increase the number of policy issues that can be decided by majority voting.

that it will not take a referendum for us to switch from unanimous to majority in any area.

Update: See my post on the "expanded" role of national parliaments for why this FAQ answer paints a rosier picture than is actually the case.

This fact seems like a pretty important point but if you were to read

7. Does the Treaty involve giving up national vetoes in many areas?

The Treaty does not involve changes in areas of sensitivity to Ireland such as taxation and defence. Unanimity is preserved for all decisions in these areas. This means that all Member States must agree to any new proposals in these areas.
There will be an increase in the number of areas in which decisions can be taken by Qualified Majority Voting (QMV). Most of these are of a technical character or relate to areas where the union has only limited competence. Examples of new areas where QMV applies are: the procedure for entry into the euro; administrative cooperation; internal EU financial regulations; humanitarian aid operations; and police cooperation (where Ireland is not obliged to take part but has the right to participate in individual measures).

In a 27-member Union, it is essential be able to take decisions by a majority vote if Europe is to function efficiently.

You would think that unanimity is guaranteed for key areas but leaves out the fact that any of these areas can be dropped by a Dáil vote.

So, am I wrong? Are there subtleties in the full text that invalidate my conclusion here or does this just come from the self-amending nature of (the famous article 48).

To describe the ability to block such a change as a new role for national parliaments is correct but a little misleading, the possibility never existed before, so this is not something used to be for the EU to decide but has been ceded to national parliaments. It's something that would have required a whole new treaty and presumably a referendum but is now just a vote in the Dáil.

To put it another way, this is not a transfer of power from the EU to national parliaments, it's a transfer of power from The People to national parliaments (at least in Ireland).

I don't even know if I object to this in itself but I do object to it being portrayed as the opposite of what it really is.

There is one other point here that appears to be relevant at first glance but I think isn't. This power might already belong to the national parliaments. It might not actually require a referendum to change one of these voting areas right now. Since the power has already been ceded to the EU, accepting changes to the manner in which decisions are made might be within the power of the Dáil anyway and so I'm wrong above to say that this is a power that used to belong to The People. I don't think this matters in for 2 reasons:

1. It doesn't make the Yes side's explanation of the changes any less dodgy.
2. After all the "no this treaty isn't self-amending", any attempt to amend this treaty or alter the voting arrangements that isn't put to a referendum (whether legally required or not) would result in uproar if not bloodshed.

...

I caved in and searched the treaty. This may or may not be Article 333 in the final text (sorry no better link, politics.ie seems to be down at the moment)

                                     Article 333
1. Where a provision of the Treaties which may be applied in the context of enhanced
   cooperation stipulates that the Council shall act unanimously, the Council, acting
   unanimously in accordance with the arrangements laid down in Article 330, may
   adopt a decision stipulating that  twill act by a qualified majority.

This is in the "enhanced cooperation" section which seems to be the bit about adding more rules/powers. So basically we can give up unanimity on anything (interestingly we don't seem to be able to get it back or switch something that's currently majority to unanimous).

Question on Lisbon treaty

I found this Europa site that answers some questions on Lisbon. They also allow you to ask questions. Here's what I asked. I'll update when it's answered.

Hi,

in your Q&A section you say that the Lisbon treaty is not easier to read because

"Changes to the EU's Treaties have always come about through amendments to previous Treaties: this was true of the Single European Act, as well as the Treaties of Maastricht, Amsterdam and Nice. The Treaty of Lisbon uses the same technique. The Union's two main Treaties will be renamed the Treaty on European Union and the Treaty on the Functioning of the European Union. The two Treaties will have the same rank.

A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version."

but this was not true of the constitution. The Lisbon treaty is a modified version of the constitution - modified so that a referendum is no longer necessary in most countries.

So, is there actually a reason why Lisbon treaty could not have been written as a consolidated piece of text, replacing prior treaties.

Specifically, is there a significant legal difference in how countries must treat a treaty which replaces prior treaties and one which amends them?

Dodgy bits of the Lisbon treaty: intellectual property

I've set aside some time today to look at the treaty and I'll record the "highlights" as blog postings.

All posts on Lisbon

Before addressing the dodgy bits, I should say that there are some presumably non-dodgy bits and even some that are important. The most cited one being voting reform. I'm prepared to believe that the voting system doesn't work well anymore with all those extra countries. I also think that maintaining our influence in the EU is one area in which I'd trust Fianna Fail to get a good bargain for Ireland.

If the treaty was just the necessary reforms I don't think I'd have a problem with it. It's the extra stuff that is riding along that seems to benefit certain lobbies, eurocrats and superstatists that makes me want to vote no. I see no reason why I shouldn't make them rip that all out and try again with just the necessary reforms.

Anyway, here's the first bit that seems to be for the benefit of a lobby group

It looks like we're getting intellectual property for it's own sake. Compare this with the US, for example, where they can grant intellectual property rights only in ways that promote progress. Even this is still subject to abuse but challenges to IP laws have been taken and won based on these limitations. Under the Lisbon treaty if the EU thinks that it'd be a great idea for patents and copyrights to last forever and to cover far more than they do today, that seems to be within their power under this treaty.

Section 84:

84) The following new Article 97a shall be inserted as the final article of Title VI:


"ARTICLE 97a

In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.

The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.".

Compare with the US constitution

Clause 8. The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

It also adds some other similar things into other sections on Common Commercial Policy. This gives the EU the right to negotiate and enter into international treaties on IP and other things. Given that these tend to be written by industry and their lobbyists they are far more oriented towards the comercialisation and extension of IP rather than the other side of the "copyright bargain".

As far I can tell, none of the other treaties mentioned IP at all.

This would presumably pave the way for further bullshit like Tesco can't sell Levi's jeans imported from non_EU countries without the brand owner's consent.

I have no problem with centralising control of IP with the EU, I can see harmonisation and streamlining benefits but your intellectual property is my intellectual restriction and so there must be limits and justifications for it.

Letter to the editor: Confused about the Lisbon treaty

I'm sick of the shite that passes for debate on the Lisbon treaty.

Sir,

I need some help on the Lisbon treaty. Apparently we have to vote yes
or foreign businesses will stop investing in our country. They
wouldn't do that if there weren't good business reasons.

So could someone please tell me what exactly in the Lisbon treaty will
make Ireland more attractive to foreign investment but will not make
other EU countries equally more attractive?

If your answer involves phrases like "Ireland at the heart of Europe"
please keep it to yourself, I've read enough of that already,

Published a couple of days later.

Letter to the editor: climate change

Sir,

as usual Robert O'Sullivan includes no actual facts or arguments in
his letter on climate change (Mar 24th), just flippancy and vague
references to unnamed "think-tanks" who are supposedly raking it in
from climate change "codology". The great advantage to this form of
"argument" is that it can't be contradicted because it contains no
information.

The only point of interest is his statement that we need not worry
because "the planet will take care of itself as it has done for
billions of years". I'm not sure Mr O'Sullivan gets the full
implications of what he is saying.

There is no reason to think that the planet will take care of us while
it's taking care of itself. In fact the exact opposite seems likely.

Neither nature nor this planet have our interests at heart. There is
no reason to believe that we can release gases, destroy forests and
drain aquifers on an industrial scale with no consequences.

There is certainly no reason to believe that the planet can equitably
sustain the 9 billion humans projected for 2050 without either a huge
change in our impact on the environment or a huge fall in living
standards for many. At the moment it is those whose standard are
already lowest who are bearing the brunt.

Yes the planet will take care of itself but we are responsible for
taking care of ourselves,

Published 2 days after. Funnily 2 comments (one by another Fergal) on the original letter say pretty the same thing between them.

Dick Keane took up my challenge for facts and I replied.