The case against Nice advanced by John Rogers is absurd, argues Eugene Regan.
As any lawyer knows, the absurd argument is the most difficult to rebut. This is the difficulty in addressing the outpourings of John Rogers SC last Saturday on the issue of the Nice Treaty.
Mr Rogers takes us on a walk through the history of European integration, presenting arguments which are fundamentally flawed and grossly misleading. He purports to use his potted history of the EU to ground his main argument that the Council of Ministers should have equal votes per member state irrespective of population size. On this premise, he concludes that the Nice Treaty makes for a less democratic Union because it provides for a reweighting of votes in the Council of Ministers.
Mr Rogers is in effect suggesting that not only should the Treaty of Nice be rewritten, but also the Treaty of Rome which we signed up to in 1973. He appears to forget that the Treaty of Rome takes population size into account in its provision for a weighting of votes in the Council of Ministers, with smaller member states, however, having a disproportionate weighting. This is the European Community Ireland joined in 1973: Ireland was accorded three votes, with a population of 3.5 million, compared to 10 votes for Germany, with a population of 60 million.
Mr Rogers is suggesting that we should now reject what we signed up to in 1973, a system which has operated for almost 30 years to the benefit of this country. This is an absurd and unsustainable argument.
Apart from the fact that Mr Rogers's starting point is wrong, in that there never was an equal weighting of votes of member states in the Council of Ministers, he is now advancing an argument that contradicts what he stated in The Irish Times on May 19th, 2001. In relation to the re-weighting provisions of the Nice Treaty, he said: "Having regard to the disparity in population between the various member states, it is hard to find fault with the reweighting proposals." What has changed between May of last year and today to give rise to this about-turn?
The argument that the reweighting of votes in the Council would make the Union less democratic does not stand up to scrutiny. Given the existing over-representation of small member states in the Council in terms of population size, the reweighting of votes in the Nice Treaty is designed merely to maintain a reasonable balance in the voting strength of larger and smaller member states.
When Ireland joined the Community in 1973, the four large member states held 69 per cent of the votes of the Council of Ministers. After Nice, the six large member states, representing 70 per cent of the enlarged Union's population, would command a mere 49 per cent of the votes. Thus smaller member states, such as Ireland, would remain over-represented in terms of their population compared to larger member states.
In circumstances where the Nice Treaty introduces a mere refinement of the voting system laid down in the Treaty of Rome - a refinement which Mr Rogers approved in May 2001 - the issue of democratic deficit simply does not arise.
One of the most obvious errors in his article last weekend is the statement, "The Single European Act was truly revolutionary." This is incorrect in that the Irish Supreme Court, in the Crotty judgment in 1986, considered that all of the changes in the Single European Act were covered by the constitutional amendment of 1972. This amendment allowed Ireland to join a dynamic community, with the exception of the provisions on foreign policy co-ordination.
Mr Rogers states that the Amsterdam Treaty brought "common foreign and security policy within the competence of the institutions of the Community". This is incorrect, since the decision-making in this area remains exclusively intergovernmental, with little role for the European Commission and no role for the European Court of Justice.
Furthermore, he states that we no longer have a truly intergovernmental Europe in which the validity of a decision depends on the consent of the participating sovereign governments. This is not so - because there never was an intergovernmental Europe.
The Treaty of Rome provided for the establishment of European institutions and a pooling of sovereignty to further the interests of the respective members states and their citizens. To suggest that only decisions taken on an intergovernmental basis are valid is tantamount to invalidating the Treaty of Rome, subsequent treaty changes, and the entire body of EC law adopted since 1957.
The validity of decisions taken at EU level is ensured by the underlying treaties, the involvement of the democratically elected European Parliament, and the participation of Irish ministers in all decisions ultimately adopted by the Council of Ministers.
Mr Rogers overlooks the fact that Nice was drawn up to facilitate enlargement and for no other purpose. It should be judged on its merits, not on extraneous and unrelated factors now being advanced by Mr Rogers.
It would be unfair to our partners in Europe to attempt to use the referendum to renegotiate the terms upon which Ireland entered the Community and call for a rewriting of the original Treaty of Rome. This, in fact, is what Mr Rogers is proposing - and it is absurd.
Eugene Regan is a barrister and a member of the Lawyers for a Yes vote within the Alliance for Europe