World View:As the troops muster in the trenches and the first shots are exchanged in the referendum battle on the Lisbon Treaty, it is clear that one of the main fields of contention between proponents and opponents will be the slippery, mud-soaked slopes of "Mount Sovereignty", writes Patrick Smyth.
"The Lisbon Treaty contains the most substantial transfer of powers from member states to the European Council and Commission to date . . . It removes our ability democratically to reject laws that are not in our interests and places an unbridgeable gulf between citizens and the decision-making processes which affect them."
- Mary Lou McDonald, MEP
"When sovereignty is relinquished, a referendum is needed. When no sovereignty is relinquished, parliament will ratify the text."
- Anders Fogh Rasmussen, Danish prime minister
Sovereignty is, by all accounts, precious and worth protecting. But, whose sovereignty? And is it, whatever we mean by it, really threatened by the Lisbon Treaty?
But, clearly there is a major definitional problem.
For the Danes the issue is clear-cut - following an independent, widely accepted, legal examination of the treaty which concluded there is no transfer of sovereignty involved in Lisbon, prime minister Anders Fogh Rasmussen has opted for parliamentary ratification rather than the referendum that would otherwise be required.
And yet opponents of the treaty in Ireland argue with passion that it represents a substantial transfer of power. The problem lies in mutually incompatible views of what "sovereignty" consists of. For the Danes what matters is the transfer to the EU of the power to legislate by direct effect (without the necessity for transposing legislation) in new areas, or "competences".
Once that has happened, in say fisheries, the method used to vote on said competence, say cod quotas, is not of Danish constitutional significance. Thus the transfer of cod quota votes from unanimity to majority voting does not affect the sovereignty issue or the constitution. It's an argument that has been enunciated with great simplicity as what one minister has called "the principle of virginity" - you can only lose it once.
In the Lisbon Treaty the transfer of
33 mostly uncontentious areas from unanimity to majority voting involves
no new competences for the EU
except in justice and home affairs where both Ireland and Denmark have
opt-outs.
In Ireland, on the other hand, it is precisely a preoccupation with this potential loss of the rarely, if ever, used Irish veto and less with new competences which has come in our debates to represent what is seen as a loss of sovereignty, but is, more accurately, its pooling.
That view of the veto as one of the elements central to the sovereignty issue found some support in the Supreme Court, whose ruling in the crucial Crotty case (1987) on ratification of the Single European Act (SEA) is often cited erroneously as the reason we need a referendum on every European treaty.
"The capacity of the Council to take decisions with legislative effect is a diminution of sovereignty of member-states . . . Sovereignty in this context is the unfettered right to decide: to say yes or no," chief justice Tom Finlay ruled for the court on both the transfer of competences issue and the veto.
But it is significant that the court also found unanimously against Crotty that the transfer of matters from unanimity to majority voting might, but did not necessarily, require a constitutional referendum as the Constitution allows the State to legislate without referendum for measures "necessitated by the obligations of membership of the Communities" (Article 29).
The court found that this enabling provision, passed at the time of accession to the EEC, and by no means a carte blanche, would have encompassed all the provisions of the Single European Act with the exception of its extension of foreign policy co-operation (though even in the latter element of the ruling Finlay disagreed with the majority on the court and would have ruled against Crotty).
It was thus only because of the treaty's foreign policy dimension that Crotty won his case, but governments have preferred since then to assume, discretion being the better part of valour, that all European treaties require a popular vote.
In the case of the Lisbon Treaty, it is likely that the court, following its logic in Crotty, would find that the majority of areas transferred to majority voting are covered by the "necessity" provision of Article 29 - the exception being, as mentioned above, the opt-out areas of justice and home affairs.
Should the State decide at some stage to opt in to some of these provisions it would probably then require the sanction of a referendum - hence the legal, as opposed to political, justification for the current referendum.
And, whose sovereignty are we debating? The confusion in the national debates on the EU is compounded by the assumption, implicit also in Crotty, that in talking about sovereignty we are considering only the sovereignty of the state, and not popular sovereignty, the sovereignty of individual citizens.
Yet if sovereignty consists of the ability of citizens equally to influence the course of events through the political process, it is highly debatable to suggest that the loss of state power, notably the veto, in exchange for the enhancing of the rights of a democratically elected parliament necessarily constitutes a net diminishing of popular sovereignty.
On the contrary. In each and every area in which the Lisbon Treaty provides for a loss of a national veto it expands the rights of MEPs to share in the legislative process through "co-decision".
The treaty also extends the right of national parliaments to contribute their view on the appropriateness of legislation.
Such expansions of democratic oversight are often dismissed by opponents of the treaty as insignificant, but in reality one form of democratic accountability is being substituted for another, and, arguably, the sovereign power of the citizen is enhanced, not curtailed.
Patrick Smyth is Foreign Editor of
The Irish Times