Treaty of Lisbon: Questions about the Irish Referendum

Anthony Coughlan
The National Platform EU Research and Information Centre

24 Crawford Avenue

Dublin 9

Tel.: 01-8305792

Thursday 24 September 2009

Dear Mr Justice Clarke

May I enclose for your information a copy of the new edition of the Lisbon Treaty: The Readable Version, the first edition of which I sent you and your Referendum Commission colleagues some time ago. I also enclose a document which describes the main changes the Lisbon Treaty would make.

May I take the opportunity of saying that the current Lisbon referendum, as I presume you have noted, has been characterized by monstrous illegality on the part of several key parties, as follows:-

1. The intervention of the European Commission, which is unlawful under European law, as the Commission has no function in relation to the ratification of new Treaties, something that is exclusively a matter for the Member States under their own constitutional procedures;

2. The part-funding of the posters and press advertisements of most of Ireland's Yes-side political parties by their sister parties in the European Parliament, even though it is illegal under Irish law to receive donations from sources outside the country in a referendum and when, under EU law, money provided by the European Parliament to cross-national political parties is supposed to be confined to informational-type material and to avoid direct partisan advocacy. I read that the Green Party has refused such funding from its sister party in the European Parliament on the ground that it is advised that this is illegal under European law (Later comment on this latter point inserted by A.Coughlan: Presumably this scrupulousness is because Green Party Local Government Minister John Gormley, as Minister responsible for running the referendum, cannot afford to have the political party he belongs to flout the law!)

3. The Government's unlawful use of public funds in circulating to voters a postcard with details of the so-called 'assurances' from the European Council, followed by a brochure some time later containing a tendentious summary of the provisions of the Lisbon Treaty - both steps being in breach of the Supreme Court's 1995 judgement in McKenna that it is unconstitutional of the Government to use public money to seek to procure a particular result in a referendum;

4. The failure of your own Referendum Commission to carry out its statutory function under the 1998 and 2001 Referendum Acts of preparing for citizens a statement or statements 'containing a general explanation of the subject matter of the proposal (viz. the proposal to amend the Constitution) and of the text thereof in the relevant Bill', namely the 28th Amendment of the Constitution Bill 2009.

May I make some points to you and your Referendum Commission colleagues regarding this.

The Lisbon Treaty-Your Guide which you have circulated to voters makes no attempt to inform them about the proposed Constitutional Amendment, despite that being your prime statutory duty and that of your Referendum Commission colleagues under the Referendum Acts.

The leaflet and other material which you have made available do not tell citizen-voters that the new first sentence of the proposed Amendment we shall be voting on provides that the State 'confirms its commitment to the European Union' which would be established by the Lisbon Treaty - a sentence, incidentally, that was not in the Constitutional Amendment in last year's referendum - and you give voters no idea that this is the case or what such a commitment might entail.

You do not inform voters that the second and third sentences of the proposed Amendment make clear that ratifying the Lisbon Treaty would abolish the European Community which Ireland joined in 1973 and would establish in its place a new European Union on the basis of the Lisbon Treaty which would be constitutionally very different from the European Union that we are currently members of, or what that difference might be.

Nowhere in the Referendum Commission's information material that you have sent to voters do you advert to the fact that the Lisbon Treaty would confer on Irish citizens an 'additional' citizenship of the post-Lisbon European Union, with associated citizens' rights and duties vis- a -vis that Union, and what the implications of such a change might be.

One would think that there could be few things more constitutionally important for citizens than being endowed with an additional citizenship. Yet you and your Commission say absolutely nothing about it in the 'information' material you have circulated - in violation of the provisions of the Act which gives you your authority.

You say nothing about how the rights and duties that we would have as real citizens of the constitutionally new European Union which the Lisbon Treaty would establish would relate to our rights and duties as Irish citizens in the event of any conflicts arising between the two; or how the 'additional' citizenship that Lisbon would endow us with differs from our essentially notional and symbolical EU 'citizenship' of today.

It is clear that such a dereliction of duty on your part and that of your fellow Commissioners amounts to constitutional delinquency of a high order, as well as being a gross misuse of the e4 million of public money that you have been entrusted with. It will be interesting to see how future historians assess your actions.

As for yourself personally, instead of doing the job which the Referendum Acts impose on you, you have arrogated to yourself the task of answering questions on the Lisbon Treaty on the radio and in the press, in which you give your personal opinions and judgements, whereas all statements by the Commission should be collectively agreed by its members, as the Referendum Acts clearly envisage.

In no way do the Referendum Acts authorise you to do the 'solo runs' on radio and in the press that you have undertaken. Your predecessor, retired Chief Justice TA Finlay, who was an exemplary chairman of the Referendum Commission between 1998 and 2002, would never have permitted this.

Some of the oral statements you have made, moreover, have been either false or misleading. From several examples I could give, I quote two. A fortnight ago you accepted in response to a question on Morning Ireland that the right of Member State governments to 'propose' and decide their National Commissioner would be changed by the Lisbon Treaty into a right to make 'suggestions' only, effectively for the incoming Commission President to decide - that key person's appointment being in the gift of the Big States.

You added the rider however that you did not think this change was of much consequence. You must be aware from previous private correspondence that I had with the Referendum Commission on behalf of my colleagues in our EU Research and Information Centre that many people on the No-side consider this be a Lisbon Treaty amendment of considerable consequence. One way or another, its consequences are clearly a matter of political judgement which it is not your job as Referendum Commission chairman to make.

Last Friday I heard you state on Morning Ireland that the difference between the 'additional' citizenship that we would have of the post-Lisbon European Union and the notional or symbolical 'complementary' EU citizenship we are said to have today was 'of no great consequence' either, or words to that effect. Yet the most cursory acquaintance with the constitutional changes which the Lisbon Treaty and the Constitutional Amendment to ratify it would bring about, shows that this is just not true. Lisbon is the old Treaty Establishing a Constitution for Europe after all which the French and Dutch rejected in 2005, even if it implements that Constitution for Europe indirectly rather than directly.

You and your Referendum Commission colleagues still have some time left in which to fulfil your statutory function under the Referendum Acts that set you up. You still have a few days in which to do your duty to the Irish people whom you are profoundly failing at present, as they face their historic decision of next Friday with virtually nothing from you and your Referendum Commission colleagues which might give them 'the general explanation of the subject matter' of the Constitutional Amendment 'and of its text', on which they will be voting, as the Referendum Act requires.

On behalf of citizens all over the country who are deeply disquieted by the Referendum Commission's failure to provide information on how the Lisbon Treaty would affect the Consitution, may I appeal to you to do that duty still and to carry out your statutory function under the Referendum Acts.

Yours sincerely

Anthony Coughlan

Director
President, Foundation for EU Democracy, Brussels