Treaty changes are only presentational


The revision of the proposed EU "constitutional" treaty which was negotiated a week ago in Brussels was christened the "Reform Treaty" by the Irish delegation to the negotiations - and this new name has now been formally adopted by the Union, writes Garret FitzGerald.

Although no one in authority has yet explained just what provisions of this treaty would impinge on our sovereignty in such a way as to necessitate a constitutional referendum, it now looks as if Ireland may be the only state which will feel it necessary to ratify the Reform Treaty by referendum.

How significant are the changes to be made to the constitutional treaty which several years ago Taoiseach Bertie Ahern, after two exhausting rounds of visits to 24 capitals, persuaded all our EU partners to sign in Rome?

The most striking change is perhaps that in order to enable some governments to reassure their electorates that the changes will have no constitutional implications, the idea of a new and "simpler" treaty containing all the provisions governing the Union has now been dropped in favour of a huge series of individual amendments to two existing treaties.

Virtual incomprehensibility has thus replaced simplicity as the key approach to EU reform.

As for the changes now proposed to be made to the constitutional treaty, most are presentational changes that have no practical effect.

They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum.

Indeed, it is arguable that the only significant changes now being made to what was unanimously agreed three years ago are:

a welcome strengthening of the power of national parliaments to block any new EU laws that they feel impinge in an unwarranted way on their national sovereignty;

two "opt-outs" sought by the British government from future qualified majority decisions in the justice area and from the application of a charter of human rights to laws made by, or arising from, EU legislation.

Apart from a brief, last-minute postponement (designed to buy off Polish opposition) of the introduction of a new system of qualified majority voting, the remaining adjustments to be made to the treaty signed in 2004 - but still not ratified by nine member states - are essentially presentational and have no perceptible legal effect.

Thus there is a sop to French protectionism in the form of the omission from the treaty preamble of a reference to "free and undistorted competition".

However, this leaves untouched the actual text of the 50-year-old basic principle of free trade, upon which the community, now the Union, was founded.

A perception problem had been created in Britain, and perhaps also in some other states, by the use of such an overblown term as "constitution" to describe the proposed new treaty, and by the description of the long-established system of regulations, directives and decisions of the EU as "laws".

The word "constitution" has simply been dropped, and these forms of community legislation are now to be described instead as "legislative acts" rather than as "laws".

References in the proposed treaty to a European anthem (Beethoven's Ode to Joy), and to the European flag, have been dropped from the document, but may still be used. (The EU flag is, in fact, the blue flag with 12 stars which was designed 50 years ago by the Irish chief herald for the much less significant Council of Europe, an emblem that was informally adopted many years ago by the EU as its flag).

Again, the EU minister for foreign affairs is now to be called the "High Representative of the Union for Foreign Affairs and Security Policy". However, there will be no change in his functions. (Will he now be known for short as HRUFASP?)

Moreover, because the British did not like any reference to the fact that the very nature of the European community or Union has from the start required that precedence be given to European law over national law, that simple statement is to de dropped in favour of a circumlocutory declaration that will recall that this is in fact the well-settled case law of the European Court of Justice.

At the end of the meeting on the new treaty, Taoiseach Ahern said that, while he thought "all the changes that we have made are for the worse . . . thankfully they haven't changed any of the substance".

Yet in the same speech he also said that we would "in the coming months give full and careful consideration to the implications for this country" of the justice opt-out provision sought by the UK, adding: "The Minister for Justice will bring proposals to the Cabinet."

Now, in 2004 there were some concerns here about the implications of some of the treaty's justice provisions for Ireland as a common-law country.

However, these concerns did not inhibit the Taoiseach from both signing up to these provisions and from successfully advocating to all other member states their adoption.

Does the Taoiseach's decision mean that, just because the British have now secured an opt-out in this area, we feel that we may have to have one too?

A similar question appeared to arise in relation to the British opt-out protocol for the charter of human rights, a document that is designed to protect European citizens from any possible negative impact of Union law on their rights.

This opt-out seems to have been sought because Britain's post-Thatcher Labour government has moved so far to the right politically that it is apparently concerned that this charter might give British workers rights to collective bargaining and/or a right to strike that have been subject to limitations under British law.

Although in his post-council speech the Taoiseach made no reference to such an opt-out, and said the Government was satisfied with the protections against intrusions into domestic law that it had secured in the charter itself, and that the charter would be a huge selling point for the Reform Treaty in next year's referendum, there was, nevertheless, an Irish request for a "wait and see" provision in respect of this second British opt-out.

However, last Tuesday, after the Ictu had fired a shot across his bows on this issue, a Government clarification explained that the Taoiseach had not mentioned the Irish "wait and see" request because "he did not think it was sufficiently important to do so".

And in the Dáil on Wednesday he explained that it was the late introduction of this British opt-out in the early hours of Saturday morning which had led him to take what was merely a precautionary step to enable the Government to secure considered legal advice on its possible significance for Ireland.