Sunday, March 30, 2008

Dodgy bits of the Lisbon treaty: self-amending

All posts on Lisbon

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".

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