Treaty is unlikely to threaten ban on abortion

Wed, Sep 9, 2009, 01:00

THE ROAD TO LISBON II:, In the third article of the series, European corresondent JAMIE SMYTHdelves behind the upshots of a ‘single legal personality’ and analyses its impact on the interplay between national and EU justice

WHEN CZECH prime minister Jan Fischer announced in June that EU leaders had agreed to the Government’s request for legal guarantees on the Lisbon Treaty, he couldn’t have been clearer. “It is an explanatory clarifying text which changes not a dot, nor comma of the Lisbon Treaty,” he said, noting that this meant there was no need for Lisbon to be re-ratified by EU states.

Fischer’s comment is likely to be replayed many times in coming weeks as Yes and No campaigners debate how Lisbon would affect Irish policies on neutrality, education and ethical issues such as abortion and the family.

Opponents of the treaty argue that it advances European values at the expense of national traditions and it represents a significant step on the path towards a federal Europe.

Lisbon supporters say the treaty builds on principles in existing EU treaties while clearly respecting states’ rights to organise their own domestic affairs.

This begs the question: who is right and what difference do the recently agreed Irish guarantees to Lisbon make? Lisbon reiterates the EU’s adherence to democratic principles, gives legal standing to a Charter of Fundamental Rights and provides the Union with a “single legal personality”.

It also allows EU leaders to amend the EU treaties without convening a conference of member states, sets objectives to combat climate change and boost energy security and, for the first time, provides a legal mechanism that enables member states to voluntarily leave the European Union.

One of the most controversial elements of the treaty is the decision to make the Charter of Fundamental Rights legally binding. The charter was initially a political declaration made by member states to list the rights of EU citizens and make them more visible.

It sets out 54 civil, political, economic and social rights applicable to European citizens and all persons resident in the EU - it spans the right to life and the rights to marry, to strike, and even to conduct business.

No campaigners such as Cóir’s Richard Greene argue the charter could form the basis of a legal challenge to Ireland’s abortion laws. Under this scenario, a person would take a case to the European Court of Justice (ECJ) alleging the denial of a right to an abortion violated the rights in the charter.

This claim is wide of the mark. Although the impact of making the charter legally binding won’t become fully clear until the ECJ builds up its case law over the next decade, encroaching on this sensitive area is highly unlikely.

The EU executive and the Government insist the charter does not create any new rights, but makes visible the rights EU citizens already enjoy under existing EU treaties, the European Convention on Human Rights and existing case law of the ECJ. It also applies only to EU laws and bodies.

Article 6 of the Lisbon Treaty states that the “charter shall not extend in any way the competences of the Union as defined by the treaties”.

Article 51 of the charter also says it is “addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the member states when they are implementing Union law”. In other words, laws proposed by the Oireachtas should remain outside the scope of the charter, and it could not, for example, be used by the judges at the ECJ to force the Government to provide the right to abortion or gay marriage.

On the sensitive issue of abortion, Ireland already has a protocol attached to the Maastricht Treaty stating clearly that nothing in the EU treaties can affect its own constitutional provisions on the right to life.

The guarantees negotiated by Taoiseach Brian Cowen in June reiterate this position in relation to the charter and the new justice provisions in the Lisbon Treaty.

The guarantees have been described as “Lisbon for slow learners” by some commentators because they underline things that the Lisbon Treaty would never have encroached on in the first place.

But they do help to clarify issues which are difficult to unpick from the complicated text of the treaty.

When the next state joins the EU in 2011 or 2012, the guarantees will get the same legal status as the EU treaties themselves to provide “belt and braces” legal certainty for the public on abortion, family, education and neutrality.

They could be invoked by judges at the ECJ in sensitive cases where national policy in certain areas conflicts with existing rights under European law. Such cases are likely to crop up in the future, because Ireland has already signed up to EU legislation that provides rights for citizens in areas such as gender equality or anti-discrimination.

But Lisbon and the charter should not provide any new rights that would undermine national laws.

Despite claims by No campaigners that Lisbon could lead to a federal Europe, the treaty confers few new competencies on the Union, although it does set objectives to combat climate change and boost energy security. It also spells things out more clearly than previous treaties in defining when the EU has the right to act and when competence lies with the state.

“The Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the member states,” says Lisbon article 1.6.

The “simplified revision procedure” has been painted by No campaigners as a mechanism to avoid future referendums. It enables changes to be made to the EU treaties without convening a conference of states.

So, for example, a country’s ability to veto decisions on certain areas of legislation (not in the defence field) may be removed by a unanimous agreement of EU leaders.

This sounds radical, but in fact the existing EU treaties already include a mechanism to allow decision-making in the justice field to move from unanimity to qualified majority voting if all EU leaders agree.

Lisbon also states that the simplified revision mechanism cannot be used to bring new legislative areas under the scope of the EU. The Government also retains its veto within the European Council, and any changes could be challenged at the Supreme Court if citizens feel Irish sovereignty has been eroded.

Lisbon provides the EU with a “single legal personality”, which will enable it to sign international treaties. It would remove the distinction between the European Union and European Community by creating a single legal entity for the first time.

Under the existing treaties, the European Community already has the right to sign international treaties and the EU has built up its own de facto treaty-making power, for example by agreeing a deal to give the US details on airline passengers to help fight terrorism. A “single legal personality” clarifies this EU treaty-making power rather than paving the way to a federal Europe, as claimed by some No campaigners.

In many respects, Lisbon marks an evolutionary step in EU integration by building on existing principles within the EU treaties, rather than proposing revolutionary steps forward.

Making the Charter of Fundamental Rights legally binding probably represents the biggest change from previous treaties.

But even here, safeguards have been written into the treaty to protect national sovereignty and restrict the EU’s ability to interfere with national law.

A militarised union . . . or a stronger peacekeeping role?

ONE OF the key issues of debate in last June’s referendum was how the Lisbon Treaty would change European defence and security policy (ESDP).

Critics alleged it would create a more militarised Union, tie Ireland into a common European defence and even introduce conscription.

Lisbon supporters said it would strengthen the EU’s capacity to undertake peacekeeping missions abroad without infringing on Irish neutrality.

Lisbon certainly advances the ambition for the Union to frame a common defence policy. The term ESDP is replaced by the title “common security and defence policy” (CSDP) in the treaty and Lisbon states that this “shall include the progressive framing of a common union defence policy”.

The treaty provides for the first time in EU treaties an article on mutual assistance, which requires that if a member state is subject to armed aggression, the other “member states have towards it an obligation of aid and assistance by all means in their power”.

Lisbon also introduces a solidarity clause that requires the Union and member states to act jointly in a spirit of solidarity if a member state comes under attack, or faces a natural or man-made disaster by mobilising all assets at their disposal. In terms of rhetoric, these are all significant steps forward in the defence area for the Union. But the treaty also provides specific opt-outs on all these points for neutral countries such as Ireland or Austria.

In this regard, Lisbon’s mutual assistance clause clearly states that it “shall not prejudice the specific character of the security and defence policy of certain member states”. The treaty provides that member states shall take a decision on joining common defence arrangements in “accordance with their respective constitutional requirements”.

The treaty also upholds the requirement for decisions on the deployment of peacekeeping or military missions to be taken on the basis of unanimity. This means Ireland cannot be forced to take part in missions and can continue to veto EU operations that it does not believe comply with the EU’s values or doctrines.

The treaty does not mention the word “conscription” at all, and there is certainly no political will for it to be introduced across the vast majority of EU member states.

Lisbon introduces the possibility of “permanent structured co-operation”, whereby a group of states could move ahead with closer integration in the ESDP area. It also sets an aspiration that member states “shall undertake to improve their military capabilities”.

But critically on both these points, Ireland, and every other EU member state, is under no obligation from the EU to spend money on arms or to sign up to any new advance group in the ESDP field.

In short, Lisbon seeks to manage a delicate balance between those EU states that want the EU to strengthen its military capabilities and those neutrals or non-aligned states such as Ireland that do not want to go down this route.

This political reality is probably best underlined by the willingness of EU states since the first vote on the treaty to reassure Ireland with a comprehensive set of legal guarantees in the field of defence policy.

These state categorically that Lisbon: does not prejudice Ireland’s traditional policy of military neutrality; does not provide for the creation of a European army or for conscription to any military formation; and does not affect the right of Ireland or any other member state to determine the nature and volume of its defence and security expenditure and the nature of its defence capabilities.

In fact, the Lisbon Treaty already provided these guarantees, although perhaps not in such an explicit fashion.

Tomorrow: What happens if Ireland votes No again?