ANALYSIS:Member states are set to make assurances that will offer clarity on issues like abortion, tax and Irish neutrality, writes GAVIN BARRETT
THE VERSION of the guarantees concerning the Lisbon Treaty which are to be offered to Ireland and which was published yesterday is not quite the final article.
The package remains to be discussed, at least formally, by a meeting of the General Affairs Council (including Ireland’s Micheál Martin) in Luxembourg. Tomorrow and Friday, they must be given the final seal of approval by all 27 leaders at a European Council meeting in Brussels with Brian Cowen in attendance.
But the fact that the Government has already circulated this text to other EU member states indicates that what we now have is close if not identical to the final form that these commitments will take. Much of the frenetic diplomatic activity of recent days was explained by the need to finalise the guarantees before publishing them so that no impression would be given of Ireland being forced to back down at the Brussels summit.
Three elements are being involved here, over and above the commitment that will also be made at the European Council to retain a commissioner from each member state.
The first is a legally binding commitment in the form of a “decision of the heads of state or government meeting within the European Council”. What exactly is a “decision” of this kind? It is not an EU law instrument. What it is, in effect, is a simplified treaty – binding in international law, although amending the EU treaties themselves. It is the same kind of legal instrument offered to the Danish government in the Edinburgh European Council in December 1992, paving the way to the approval by that country’s electorate of the Maastricht Treaty in a May 1993 vote after its initial rejection in June 1992.
Normally, a treaty requires ratification by other member states. This treaty (like the Edinburgh one) does not. This is because it involves the member states offering existing legal guarantees and clarification only in respect of substantive legal obligations already explicit or implicit in the treaty.
This decision will be an additional, superimposed legal commitment by all other member states effectively confirming in effect that what Irish voters were told prior to the last referendum by No campaigners – that the Lisbon Treaty would pose a threat to Irish corporate tax rates, end Irish neutrality and result in abortion legalised in Ireland – is not what the treaty means.
It thus expresses more clearly that which is already implicit in the treaty. It is highly likely that Ireland will seek to register the decision as an international treaty with the UN, just as the Danes did with the earlier 1992 decision.
Depending on the outcome of the European Council, there may be a further agreement that the contents of the decision be converted into a protocol attached to the EU treaties (and thus made part of EU treaty law), but that will happen if at all, after the Irish referendum, and be carried out as part of a Croatian accession treaty perhaps in 2010.
The “decision” is divided into three parts.
Part A contains a commitment that nothing in the relevant parts of the treaty affects the scope and applicability of various provisions of the Irish Constitution concerning the right to life, the rights of the family and education rights. Given that the Maastricht Treaty abortion protocol is reproduced verbatim at Lisbon, it was always mystifying how No campaigners could claim the constitutional rules concerning this issue were affected in any manner by Lisbon, but the matter appears to have been put beyond further doubt here.
Part B contains a commitment that nothing in the treaty makes a change of any kind to the extent or operation of the competence of the European Union in relation to taxation. That the member states are prepared to enter into a treaty commitment of this nature speaks volumes about the accuracy of Libertas claims in particular that Ireland would see its corporate tax regime undermined if Lisbon came into force. This was never the case. Interventions in this regard would require unanimous agreement – including that of Ireland.
Part C makes extensive reference to security and defence matters. It contains legal commitments: that the treaty does not affect Ireland’s traditional policy of military neutrality; that it is up to Ireland to determine the nature of aid to be provided to a member state which is the victim of terrorism or armed aggression on its territory; that any decision to move to a common defence must be unanimous; that it is for each member state to decide whether to participate in permanent structured co-operation or the European Defence Agency; that the treaty does not provide for conscription or the creation of a European army, that member states’ right to determine the nature and volume of their defence expenditure is unaffected and that it is for Ireland to decide whether or not to participate in any military operation.
Overall, there is little surprising here to anyone who took the trouble to read the treaty in the first place (particularly the Articles 21, 42, 45, 46 it will insert in the Treaty on European Union) – although it has to be said that that apparently did not include some of its most vocal opponents in Ireland.
The second element of the assurances consists of a non-legally binding “solemn declaration on workers’ rights and social policy”. This seems to be intended to constitute a reminder concerning the EU’s commitment to issues like workers’ rights and public services.
Much of its phraseology is already set out in various articles and preamble provisions in the treaties as they will stand after Lisbon, albeit concentrated in one document. Legally, however, this declaration, although it represents the member states’ intentions, alters nothing.
Its non-legal status reflects an extreme degree of sensitivity – reportedly particularly by the UK government – about tampering with the treaty’s provisions here, particularly concerning workers’ rights. The final element of the assurances constitutes – as might have been expected, given the similar approach adopted in the wake of the Nice Treaty rejection – a solemn declaration by Ireland, which will be associated with Ireland’s instrument of ratification.
The political commitments contained here are of interest. In the first place, any decision by Ireland to participate in projects or programmes initiated under the auspices of the European Defence Agency is now to be subjected to the approval of the Dáil “in accordance with Irish law”. The requirement of Dáil approval is also to go for any decision enabling Ireland to participate in permanent structured co-operation in the military field. Legislation can be expected in both regards.
Dr Gavin Barrett is a senior lecturer in the UCD school of law