The Treaty establishing a Constitution for Europe is an ambitious and complex official document of 482 pages, including its four main parts and its protocols and declarations. Having been negotiated over three years by a convention of parliamentarians and government representatives and then by an inter-governmental conference building on their work, it sets out the values on which the European Union is based, specifies its competences, spells out its decision-making procedures and brings together in one treaty what had previously been scattered through several different ones.
The document consolidates a long period of innovation and gives the EU new powers. It is intended to stabilise these achievements into a durable constitutional settlement, capable of being amended more flexibly than heretofore.
All this poses serious challenges for the Government as it decides how to present the constitutional treaty to the electorate for ratification in a referendum. These issues are spelled out in the draft proposed amendments to Article 29 of the State's Constitution published in this newspaper today. They are accompanied by short explanatory notes setting out the legal reasoning behind them. These amendments are being discussed with Opposition parties, within the Government and between departments. Their publication here will ensure they receive the necessary wider hearing and political debate before they are finally agreed.
Some of the amendments are drafting or procedural in character, consequent on the treaty being passed in a referendum. But there are two major constitutional changes, in the fine print, to enable this State to exercise options and discretions under the treaty after it is ratified by all the member-states. The most important of these is the fundamental change in the balance of power ceding sovereignty to the Oireachtas rather than the people on some controversial issues which have been the subject of heated debate in the past. New procedures are also set out for amending this treaty (to abolish national vetoes for example) subject to prior approval by the Oireachtas rather than by new treaties requiring fresh inter-governmental conferences and national ratifications. They rule out Ireland's involvement in a common EU defence, as per the Nice II agreement, but would allow participation in "permanent structured co-operation" with Oireachtas approval. What would people be voting for?
These substantive amendments are portrayed as necessary to make the treaty a more durable and flexible constitutional settlement for the European Union. They mark a fundamental change in the way that we govern ourselves. The Government is proposing that the Oireachtas would replace the people as the supreme power. The amendments are designed deliberately to remove the courts from reviewing issues of constitutionality. The referendum process may be an inconvenience for governments - especially when people can say No. The Government will have to think again.