Thursday, April 22, 2004

A letter to Michael Howard

Or how they stitched up the last referendums

FROM: Anthony Coughlan, Senior Lecturer Emeritus in Social Policy, Trinity College Dublin; Secretary, The National Platform EU Research and Information Centre, Ireland.

In his letter of yesterday to Prime Minister Tony Blair regarding the latter's suggestion of holding a second UK referendum on the proposed EU Constitution if the first one should be defeated, Mr Michael Howard is reported as stating the following:

"However, the clear implication of what you said in the House of Commons today is that if the British people were to vote no in a referendum while you were still Prime Minister, you would follow the Irish precedent after
the Irish people had voted no to the Nice Treaty, re-negotiate in some minor way the Constitution and then force the British people to vote again in a second referendum."


Mr Howard may find is useful to note that there was no "re-negotiation in a minor way" of the Nice Treaty after Irish voters rejected it in June 2001 - anymore than there was any negotiated change in the Maastricht Treaty when Danish voters rejected that in June 1992.

In both cases not a jot or tittle of the respective treaties was altered,and they were put a second time to Irish and Danish citizens unchanged, in exactly the same legal and constitutional form as on the first occasion.

This necessarily had to be the case, for any "re-negotiation" would have led to what was legally an entirely new Treaty, requiring ratification from scratch by all EU States, and during such a negotiation/re-negotiation any EU State could have raised any issue; something that for political reasons had to be avoided at all costs.

In the case of Ireland's two Nice referendums, what was altered was the Irish referendum law, whereby the provision that public money should be spent setting out the No-side and Yes-side arguments in constitutional referendums was deleted, so depriving the normally impecunious No-side interests in the Republic of a significant advantage. Thus to secure the passage of the Nice Two referendum in the Republic in October 2002, no public money was available to put the No-side arguments, in contrast to Nice One. This cleared the way for exclusively private money to be spent - overwhelmingly on the Yes side by a ratio of 10 to 1 on a conservative estimate.

The other change that was made to increase Irish voter turnout and get a referendum majority for ratifying Nice Two was to add an additional question to the question: Are you willing to change the Constitution to permit the State to ratify the Treaty of Nice? This second question was whether the Republic's written Costitution should be changed so as to require a popular referendum before the Irish State could join any future EU defence Pact. This second question was then lumped in with the first AS ONE QUESTION, so that citizens were asked to give one answer, Yes or No, to the combined two questions, "A" and "B", even though there was no legal
connection between them. Thus in the second Irish Nice referendum if a citizen voted in favour of ratifying the Treaty of Nice, they secured in addition a constitutional change that guaranteed them a referendum before
the Irish State could join any future EU defence pact. If citizens voted No to Nice, they deprived themselves of any such a constitutional guarantee.

A clever piece of anti-democratic chicanery on the part of the Irish Government of Mr Bertie Ahern; but the Nice Treaty whose ratification the Republic's voters were saying Yes or No to, was exactly the same on both
occasions, and no change had been made to it.


Likewise in the repeat Danish referendum on the Maastricht Treaty in September 1993, there was no change, major or minor,in that Treaty. What happened was that the composition of the Danish Government changed between the two referendums; one of the Danish political parties shifted from a No to a Yes position on Maastricht; and Danish voters were placated with a non-legally-binding Declaration promising legal opt-outs from the citizenship, defence and justice and home affairs provisions of the Maastricht Treaty - to be incorporated in a future EU Treaty, but not in
Maastricht; and this was done in the 1997 Treaty of Amsterdam.

It is clearly important that British citizens should not be given the impression that the Irish and Danes changed their votes because some alteration had been made to the EU Treaties in question through some re-negotiation, for no such changes and no such negotiation or re-negotiation occurred.


Article IV-8 of the "Draft Treaty Establishing a constitution for Europe", to give the proposed new EU Treaty its proper title, provides that it must be ratified by all the EU Member States "in accordance with their
respective constitutional requirements" in order to enter into force. This is the usual formula governing the ratification of EC/EU treaties. It means that ALL 25 Member States of the enlarged EU must ratify the proposed Treaty/Constitution and it cannot come into force for any of them without coming into force for all.

A Declaration - which is a political statement that is not legally part of a treaty and is therefore not legally binding - is attached to the Draft Treaty, entitled "Declaration In The Final Act of Signature of the Treaty Establishing the Constitution." This reads: "If, two years after the signature of the Treaty establishing the Constitution, four-fifths of the Member States have ratified it and one or more States have encountered
difficulties in proceeding with ratification, the matter will be referred to the European Council", that is, the Council of EU Presidents and Prime Ministers.

If one or more States are unwilling to ratify, however, there is nothing legally that the Presidents and Prime Ministers of the other EU States can do to make them change their minds. All EU treaties are treaties between
States that are constitutionally and legally equal, which is why they must be ratified unanimously.

In theory the Member States that wanted to be ruled by an EU Constitution could go off and found a different and separate EU among themselves, with a different euro-currency and a different Commission, Council, Parliament etc., leaving the non-ratifying States with the present EU, and all its resources, institutions, including the existing euro, and its network of international treaties; but that is not a realistic option.

There is no mechanism for expelling a State or States from the EU because they are reluctant to repeal all the existing EC/EU treaties and found what is politically, legally and constitutionally quite a new EU, with legal
personality for the first time, based on its own State Constitution, and give that Constitution primacy over their own Constitutions and laws, as is done in Article I-10 of the Draft Treaty. Any attempt to do or threaten
this by EU States and interests that desire to push through an EU Constitution, is just so much bluff.


The political reality is that if a small State like Ireland or Denmark votes No to an EU Treaty, its own Government in conjunction with the governments of the other EU States will put its voters under massive pressure to vote again and "get it right" a second time around. If a Big
State votes against, that is politically the end of the matter, for its Government would not dare put exactly the same Treaty before its voters again and its voters would jib at being bullied by other EU States and the
EU Commission.

As the demand for more referendums on the proposed EU Constitution spreads across Europe it is clearly important that this should be coupled with the
call that if voters in any EU State, Small or Big, say No to refounding the EU on the basis of its own (State) Constitution, their verdict will be respected and that will be the end of the matter.

There must be no more concerted bullying of electorates reluctant to abolish what is left of their national democracy by eurofanatical EU Governments, hand-in-glove with the EU Commission and the international European Movement, as occurred during Ireland's second Nice referendum and in last year's Accession Referendums in most of the 10 new EU States.

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