In regard to the Lisbon Treaty.
What does the Charter of Rights in the Lisbon Treaty mean for the right of the Irish people to decide on social and moral issues? Research has shown that abortion and other ethical issues, such as euthanasia and family law, were of serious concern to voters who rejected the Lisbon Treaty. The Irish Government has sought assurances on these issues from the EU Council and has promised that the EU will allow a protocol on abortion to be attached to a future treaty at some future date.
But the assurances given by the EU Council are not legally binding in EU law, because they are not part of any treaty. They are simply political promises.As High Court Judge and Chairman of the Referendum Commission, Frank Clarke has confirmed, they won’t change the Lisbon Treaty.
- If a protocol on abortion is obtained at a future date (although no-one knows at this point what it will actually say), it is unlikely that, if the Lisbon Treaty is passed, such a protocol would stand against a legal challenge. This is because the power of the European Court of Justice to decide on human rights issues, such as abortion, will be vastly increased by the Charter of Rights attached to the Lisbon Treaty.
- This is the core of the problem. Any protocol on the right to life (or on family law) can come into conflict with the Charter – and the European Court of Justice can use the Charter to overrule a conflicting protocol and impose abortion on the Irish people.
- In other words, the matter will still be in the hands of the European Court of Justice if Lisbon is passed.
- Not a dot or comma of the Lisbon Treaty has been changed by these assurances – it’s still the same bad treaty we rejected in June 2008. Neither will any reference be made to assurances in the amendment to be put to the people on October 2nd.
On December 12th last, An Taoiseach, Brian Cowen, put the chief concerns of the Irish people with regard to the Lisbon Treaty before the European Council. Concerns regarding abortion and other ethical issues were at the top of the list. The European Council agreed that they would be willing to give what they called “assurances” in relation to these issues in order to have the Lisbon Treaty passed in a second referendum.
It was, on many levels, an extraordinary negotiation. Abortion, and issues such as euthanasia and family law, became hugely important for voters during the Lisbon Treaty referendum campaign, but the political parties had consistently denied that these issues had anything to do with the treaty. Indeed, they insisted, there was no need for the assurances offered by the European Council now, but they were happy to get these assurances if they would be useful in persuading many voters to support a second referendum
In both instances, the European Council and the Irish Government are being misleading - some would say being downright deceptive.
It is a fact that the Irish people will lose the right to decide on abortion and other social issues if the Lisbon Treaty is passed. And it is a fact that the assurances offered by the European Council are not legally binding in European Law and, as such, are worthless. It is also a certainty that any existing or future protocols on abortion will be challenged before the European Court of Justice in a bid to have abortion legalised here – and that the Lisbon Treaty will give the Court the power to find that a right to abortion exists for all EU citizens.
Abortion, and other social issues such as marriage rights, became important during the debate on the Lisbon Treaty because some key facts about the Treaty and the Charter of Rights attached to the Treaty were explained to the electorate.
THOSE INDISPUTABLE FACTS ARE:
1. The Lisbon Treaty, in Articles 1 and 47, would create a new EU state for the first time. This is a fundamental change to what previously existed. We would all then be made citizens of this new EU state by Article 9.
2. Article 6 of Lisbon would then make the Charter of Rights attached to the Treaty binding on all citizens in all EU member states – meaning that all citizens of the new EU state would have the same enforceable rights. Those rights are what are laid down in the Charter – and the Charter does not recognize the right to life of the unborn child or traditional marriage.
3. Interpretation of these rights would then be given to the European Court of Justice (ECJ), which would have the right to overrule our Constitution on all these matters. Declaration 17 on primacy in the Lisbon Treaty spells out that EU law will supersede the Irish Constitution.
4. If the European Court of Justice decided that a right to abortion exists under any clause in the Charter, then EU law will simply be held superior to Irish law and to the wishes of the Irish people.
5. Therefore if Lisbon is passed it will merely take a court case – such as the D case currently being funded by the Irish Family Planning Association - to come before the ECJ for our pro-life laws to be overruled. And there will then be absolutely nothing we can do about it. We will have voted away our right to decide.
6. The Maastricht protocol, which was designed to protect Ireland’s pro-life amendment (Article 40.3.3) – would certainly be challenged in the European Court, whose enhanced powers under the Lisbon Treaty would include the right to overrule that, or other, protocols, once the Charter of Rights attached to Lisbon came into effect, and we were all made EU citizens.
7. The European Court of Justice already decided in the 1991 Grogan case (1) that abortion was merely a ‘service’. Now the Lisbon Treaty would give them the right to enforce a similar judgment and to change our abortion laws against our wishes.
Before the referendum last June, Cóir made these issues a central plank of our campaign. Extensive research undertaken for the Government following the defeat of the Lisbon Treaty has since shown that abortion and other moral issues were major factors for up to 79% of No voters.
Millward Brown found that 79% of No voters felt that abortion issues were important for Ireland, while 66% of No voters were prompted to vote as they did by abortion concerns. Their findings were preceded by the results of a Sunday Business Post poll which found that 58% of voters believed that Lisbon could affect Ireland’s abortion laws – and of those 74% voted No. (2)
This is because the threat of legalized abortion - and to our right to decide our own laws – is very clear from the Lisbon Treaty.
Leading Constitutional barrister Gerald Hogan remarked last year that, post-Lisbon, our Supreme Court would be “eclipsed” by the Charter of Rights attached to the treaty. (3) And Fidelma Macken, an Irish member of the European Court of Justice, said that it would be “foolish” to argue that the Charter will not affect national laws. (4)
In an analysis published last June, the European Centre for Law and Justice argued that “If the European Court of Justice were to decide that abortion is a ‘right’ in interpreting the Charter of Fundamental Rights, it appears that this decision, would be binding on Ireland, Protocol 35 (the Maastricht protocol) notwithstanding.”
The law centre pointed out that the Maastricht Protocol only guarded against provisions of EU Treaty law, while they believed the threat to Irish pro-life laws would come from legislation or an EU Court decision that would declare abortion to be a fundamental human right. “This is not a remote possibility;” their report goes on to state, “in fact, given the recent history of the European institutions, this is more probable than not to happen.” (5)
Archbishop Diarmuid Martin stated on 3 March 2009 that it would be “foolish to think that such protocols would be totally immune from any future legal challenge.” (6)
And the European Centre for Law and Justice also warned of an EU Court judgment overturning Ireland’s Constitutional protection of marriage as being a union of a man and woman.
That definition of marriage has since received a bashing from the EU Parliament, who voted on 14th January this year to approve a resolution urging EU member states to recognize same-sex marriage and abortion rights.
In a blow to the denials of the Irish government on the effect of the Lisbon Treaty on Ireland’s moral and social laws, the resolution – called the Catania resolution – was actually based on the Charter of Rights attached to the Lisbon Treaty.
The significance of the Catania resolution is not just that it reveals the mindset of the EU Parliament – it also revealed what that Parliament believed the Charter of Rights attached to Lisbon to be – a Charter which could be used to attack the right to life and the traditional definition of marriage.
So what of much-touted “assurances”, “promises” and what the Government is calling “guarantees” on issues such as abortion, taxation and defence which have been offered by the European Council.
An Taoiseach, Brian Cowen, has argued that these statements made by the EU Council should ease concerns which led to the No vote.
This Government is being fundamentally dishonest.
Why? Because they know full well that all these assurances are utterly worthless; they are not part of any treaty and therefore have no legal effect in EU law. Writing about these assurances in the Irish Times on July 30th 2009, High Court Judge and Chairman of the Referendum Commission, Frank Clarke wrote that “these do not change the treaty”. He also described the assurances as “statements” – rather than using the deliberately misleading description of “guarantee” being bandied about by the Government and by Yes campaigners.
That’s because these statements are not guarantees – they are not legally binding on the EU Court of Justice, which is the only body that decides on and interprets EU treaties; despite the government’s insistence that lodging them with the United Nations gives them legal standing. As journalist Vincent Browne has remarked they might as well be lodged with Leitrim County Council.
The “guarantees” will not be referenced in the amendment which is now to be put before the Irish people on October 2nd – the planned date for the second referendum on the Lisbon Treaty. This just confirms what we know to be true: these guarantees can have no effect on Irish or EU law.
And the EU Council has narrowed the scope of the Lisbon "guarantee" on protecting the right to life, family and education in the Irish Constitution to one small area of the Lisbon Treaty?
That’s the area of “Freedom, Security and Justice”, which is only one of 13 areas of shared competences in the EU, i.e. shared between the Union and its Member States.
The guarantee does not purport to protect the Irish constitutional position in the other areas of the Treaty – in relation to the internal market, or social policy, for example. The obvious question is why not?
But in any case, these “guarantees” have no legal effect in EU law. In fact, they are merely political promises – the sort that are broken daily – and even worse, they are promises about a future event or events over which we have no control whatsoever.
So now we know the assurances will not change the Lisbon Treaty – not a word or a jot.
But what of the future protocols promised by the EU – which may or may not be attached to a future treaty at some date. Several problems arise with this means of securing our right to decide on abortion and other issues.
Firstly, when the Government says that it promises to bring forward at some future date a protocol on, for example, abortion that’s a promise we cannot hold them to. We don’t know the wording of these proposed protocols or whether they will ever actually come to pass. To come into force such a protocol would have to be ratified by all 27 EU member states.
The June declaration by the EU Prime Ministers and Presidents stated that this future protocol “will clarify but not change either the content or the application of the Treaty of Lisbon.” So, it would remain an interpretative statement and would not be an opt-out from the treaty for Ireland as regards the right-to-life or any other fundamental right.
Secondly, and more importantly, while such protocols would have legal standing as an interpretative statement which the EU Court might, or might not, agree with, the same problem as before still arises (and is the reason why pro-life people voted No to Lisbon despite the Maastricht protocol). That problem is the Charter of Rights attached to the treaty.
If a protocol on abortion is obtained at a future date (although no-one knows at this point what it will actually say), it is unlikely that, if the Lisbon Treaty is passed, such a protocol would stand against a legal challenge. This is because the power of the European Court of Justice to decide on issues such as abortion will be vastly increased by the Charter of Rights attached to the Lisbon Treaty.
This is the core of the problem. Any protocol on the right to life (or on family law) can come into conflict with the Charter – and the European Court of Justice can use the Charter to overrule a conflicting protocol and impose abortion on the Irish people.
In other words, the matter will still be in the hands of the ECJ if Lisbon is passed.
Some commentators have said that it would be better for pro-life people to lobby the European Union politically than to oppose the Lisbon Treaty. But this simply doesn’t make sense in regard to our abortion laws. The European Court of Justice cannot be lobbied – nor will its judgments be reversed even in the unlikely event that the EU Parliament ever favoured a ban on abortion.
Yes campaigners have pointed to the precedent set down by the Danish government following the rejection of the Maastricht Treaty in a referendum there in 1992. In that case the Danish government sought and secured legally binding opt-outs from the central provisions of Maastricht - the euro-currency, EU military and security commitments, and Maastricht’s provisions on EU citizenship.
We are in quite a different position to the Danes however, in that our government – unlike the Poles and the British - has not sought an opt-out from the Charter of Rights. In relation to Irish social and family law then, the Charter could be used to overrule any future protocol, which was not the case in relation to any Danish concerns.
The fundamental problem lies in the desire of the EU to become ever more centralized and federalized. They want Ireland (and the other smaller states especially) to give up more and more of our sovereignty and our voting power in making EU laws. In short, they want us to hand over our right to decide.
While that may not seem so important when we are discussing banana sizes or patio heaters, it becomes a very serious matter when it comes to the right to decide our own laws. Lisbon will take from each of you, from every Irish person, the right to decide on abortion, euthanasia and other crucially important issues.
(1) (SPUC v. Grogan, Case C-159/90), 4 October 1991
(2) Millward Brown IMS: September 2008. Post Lisbon Treaty Referendum Research Findings. Sunday Business Post: June 2008.
(3) Irish Times. 24 April 2008. Charter ‘could eclipse’ Supreme Court. Carol Coulter
(4) Open Europe: June 2007. The EU Charter of Fundamental Rights: Why a fudge won’t work,
(5) European Centre for Law and Justice: May 2008. Legal Analysis of Select Provisions of the Lisbon Treaty
(6) Archbishop Diarmuid Martin: 03 March 2007 speaking to the Institute of International and European Affairs as reported on Catholicireland.net