Letter to the editor: final Lisbon

The letters page in the Indo has been 100% Lisbon for the last few days and I spotted one today that annoyed me enough to get back on the horse. Maybe it'll sneak in in time.

I'm sick of hearing about how Europe has been good for us because that misses the point - Europe with consensus and vetoes has been good for us but there's no reason to believe that Europe with majority rule imposed on the minority will be any fun for us at all.

For an example of how "good for Europe" does not always mean "good for Ireland" you just have to look at ECB interest rates over the last 10 years. The low rates caused an unsustainable property boom in this country and made property speculators and landlords wealthy while making housing unaffordable for many. Now that Europe needs higher rates, our boom has turned to bust and there will be no soft landing.

I'm sick of hearing how this treaty is mainly about streamlining - if this treaty wasn't about giving away sovereignty, there would be no requirement for a referendum. The EU could streamline itself left, right and centre without needing the Irish people's say-so. For example, as I understand it, the treaty of Amsterdam amended the same treaties as Lisbon does and required no referendum in Ireland because it didn't touch sovereignty.

Anyway, there's too much there to have any hope of being printed, here's what I sent.

Those pushing for a "yes" to Lisbon are fond of pointing out the EU
has been great for Ireland - and it has. Directives have come from
Europe that our government has agreed to but would never have put
forward itself. They are like medicine - sometimes unpalatable but
good for us in the long term.

What the "yes" side always gloss over is that these directives have
all been negotiated with the knowledge that each country has a veto.
This has ensured that we really do get something that's good for
everyone, not something that's a cure for the bigger nations and a
poison for us. The Lisbon treaty changes this.

By removing vetoes, the treaty does not just "streamline" the EU's
decision making, it fundamentally changes it. We will not get the same
end result, just with less red tape. It will be a different end
result, one which may not be good for us in the short-term or the
long-term but which we will be powerless to reject,

Dodgy bits of the Lisbon treaty: the "expanded" role of national parliaments

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Update: I spoke to someone from the Dept of Foreign affairs on the phone this evening who confirmed my understanding. They also said that they felt the FAQ answer was not misleading, that the answers on that page were supposed to be shorter with less detail. That the detail they chose to omit renders the entire thing pointless was not an issue for them.

I keep hearing about the expanded role that national parliaments will have if Lisbon is ratified. As far as I can tell it is at best a figment of the imagination of the "yes" campaigners.

This is from the Dept of Foreign Affairs Lisbon treaty website

The Reform Treaty will give the National Parliaments of EU Member States a direct input into European legislation. All proposals for EU legislation will be sent directly to National Parliaments. The Parliaments will have the right to offer “reasoned opinions.”

If a sufficient number of National Parliaments object to a particular proposal, it can either be amended or withdrawn. This “yellow card procedure” is designed to give National Parliaments an important role in ensuring that the Union does not exceed its authority by involving itself in matters which can best be dealt with at national, regional or local level.

This "yellow card procedure" is what is focused on by "yes" campaigners as the fabulous new power that parliaments will have. It seems great, it seems like if enough parliaments get together they can stop bad legislation coming from the EU. The problem is, the circumstances under which they can stop something.

National parliaments will not be able to stop legislation that they don't like or that they think would be damaging to the EU or undemocratic or just generally a bad idea. There role is "ensuring that the Union does not exceed its authority by involving itself in matters which can best be dealt with at national, regional or local level". It's spelled out more clearly on the Referendum Commission's website

The parliaments may send a “reasoned opinion” to the EU institutions on whether draft legislation complies with the principle of subsidiarity. There is also a Protocol on subsidiarity which requires that draft legislative proposals are justified on the basis of subsidiarity and proportionality.

If enough national parliaments vote to send a reasoned opinion the draft legislation must be reviewed.

...

The review does not mean that the proposal must be withdrawn. If the proposer (usually, the Commission) wished to continue with the proposal, it must set out a reasoned opinion on why it considers that the principle of subsidiarity has not been breached.

According to this, parliaments can only object when a law breaches the principles of either subsidiarity (some things are better handled by the individual countries) or proportionality (any EU laws must achieve the goal of the treaties with the minimum of side-effects or restrictions on the member states). If enough parliaments feel the proposal breaks these principles then the EU must either change the proposal or explain why it thinks it's right and the parliaments are wrong. Either way, the proposal continues on, unless more 50% of parliaments objected, in which case either the European parliament or the Council of Ministers can kill it (by a majority vote). The full details of this are laid out (fairly clearly) in Protocol on the application of the principles of subsidiarity and proportionality (full treaty available in all EU languages from this page).

So basically the "expanded" role of the national parliaments is that they get to point out when the EU is doing something it's not allowed to do. I'm not sure who policed this previously, maybe it required someone to take a case to one of the European courts but basically this is a nonsense power. If you were to listen to the "yes" campaign you'd believe the parliaments would be able bounce back any laws that they don't like. This is simply not true.

While I'm at it, Lisbon gives the EU power in lots of new areas, areas which are currently under the power of national parliaments. So no matter how you slice that, Lisbon is reducing parliaments' roles in all of these areas. Giving them the ability to act as a speed bump in the very limited circumstances I've described does not change that and certainly doesn't justify their role being described as "expanded".

For completeness I should also point out that parliaments have a new veto power. Various areas currently require unanimous agreement by member states but in the future these can be changed to qualified majority if all member states agree (interestingly the reverse, going from majority to unanimity is never possible). If this ever happens, parliaments can veto it. Of course this would require the rather unlikely situation where a prime-minister agrees to switch to majority but his national parliament vote against him. Again if you consider that, before Lisbon, it was impossible for any area to change from unanimity to majority, describing this veto as an "expanded" role is nonsensical - previously this power resided with the parliaments (or in some countries with the people) so again this is actually a reduction in the parliaments power. It's a bit like if you (parliament) and your partner (prime minister) have a joint bank account and then someone (EU) says "I'm taking your name off the account and putting my name on it but don't worry, you now have an expanded role - if I ever try to take your partner's name off the account, you're allowed stop me."

Interestingly, other pages on the Dept of Foreign affairs completely leave out the fact that parliaments can only object on grounds of subsidiarity and give the impression that they can object for any reason:

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.

it's possible that I'm misunderstanding something but give that this contradicts other pages on the same website and also the Referendum Commission's description, this seems incorrect. I am waiting for a call back from the dept. with clarification. Update: they called me back, I'm correct, they don't think it's important.

So, there you go, war is peace, freedom is slavery, ignorance is strength and reduced is expanded. It's funny, if this role for parliaments didn't exist at all, I probably wouldn't care. What I care about is that the "yes" side are lying about it and selling it as something it really isn't.

Dodgy bits of the Lisbon treaty: more intellectual property

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It has been pointed out to me that Europe already has a say on IP issues and that this is not new. This is true, I followed and contributed a little effort to the software patent battle (that page contains the marvellous example of what European democracy can involve - 'When Brinkhorst spoke at the Council's "public session", the microphones were switched off. Thus we do not know what he said.'). I also recently asked some questions recently about Charlie McCreevy's new scheme to extend the duration of copyright for session musicians. Apparently this scheme will give them more money while not costing anybody anything - a modern day economic miracle of the loaves and fishes. One of my questions, yet to receive a reply, is about the "empirical studies" which back up this economic miracle.

So yes, Europe already has a hand in IP but that does not mean I have to be happy for that to be formalised and set in stone, particularly in the current form where there is no rationale, principles, social bargain or even a mention of the limited duration of an IP monopoly and certainly nothing about fair use.

Interestingly this seems to apply to the entire commercial section. I'll write about that too if I get a chance.

Funnily enough, I don't know whether your IP rights beat my rights to freedom of expression under the new human rights stuff. I presume this has been worked out before in a court somewhere but it doesn't seem to be included in the documents.

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).

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.

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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.