Of Laws and Men

On Newstalk on Saturday (10/5/08), Ruairi Quinn responded to a complaint from Ulick McEvaddy about the opacity of the Treaty. He suggested that when buying a house or an airplane (UMcE has bought quite a few Boeing 707s), the "real deal" is simple but the legal document has to be complex, and that there is nothing abnormal or sinister about that.

Unfortunately, that is a misrepresentation of how we got this kind of treaty document. It is not "just one of those things" that the Treaty has been made complex. It is intentionally unintelligible. The politicans could have made it simple; they decided not to do so. "The Economist" weekly newspaper, whose Europhile credentials are impeccable, had the integrity to note this here as drafting proceeded, and again here.The titles of these articles -"Hee-hee Voters Fooled Again" and "Journalists for a Cover-up" - must make any genuine democrat's blood run cold.

Of a piece with this approach has been the extraordinary failure refusal of the EU to publish until last month a pro-forma consolidated version of the Treaties as reformed by Lisbon. Only with this consolidated version can one see what future constitution one is voting for, or against. For a very long time, the "official line" was that the right time to produce this document would not come until ratification was complete !

Just contemplate for a moment the ramifications of that stance. One - entirely fair in my opinion - paraphrase of it would be: when you have voted for it, we will let you see what it is.

The word "democracy" can be paraded as often as you like, but a Union where several units have ratified a constituent document without being able to see it in advance, cannot be validly called democratic. Hungarian legislators, for example, ratified the Lisbon Treaty three days, two of them being Saturday and Sunday, after it was signed.

If,as is still likely, I vote against the Treaty, it will be mainly because of the above.

So far I have only looked at apparently bad reasons to vote one way or the other in the Lisbon treaty referendum. This reflects the fact that most discussions that I have heard feature only bad reasons on either side. However, in making one's decision, the bad reasons on either side are irrelevant, I suggest. One reaches one's decision based on the weight one attaches to the various good reasons. There are good reasons to vote yes as well as good ones to vote no.

" It's a no-brainer" say some. I disagree; there are in fact very few "no-brainers", perhaps especially not in politics, and certainly not in constitutional politics.

Even in general, one should be careful of cosy consensus, as these celebrated quotations illustrate:

If we are all in agreement on the decision - then I propose we postpone further discussion of this matter until our next meeting to give ourselves time to develop disagreement and perhaps gain some understanding of what the decision is all about.

(Alfred P. Sloan)

If everyone is thinking alike, then somebody isn't thinking.

(George S. Patton)

(Note to Lucinda Creighton T.D.: now would not be a good time to observe that both of these quotations were by Americans, and dead ones at that.)

Even those who are not familiar with Californian politics may have heard of the ballot initiative, which gave us the infamous "three strikes" law, whereby a person convicted of three serious crimes must be imprisoned for life. I abhor that law, but rather like the idea of a ballot initiative.

You could be forgiven, then, for thinking that I might, like Fine Gaeler John Carroll, be enthused by the Citizens' Initiative provision in the Treaty.

Well, I am not.

I cannot understand how anyone could seriously enthuse about this meaningless idea. With no Lisbon Treaty, it is just as easy (or difficult) for one million voters to propose something to the Commission. Even if the Treaty is ratified, such a proposal will have just as much, or as little, legal status as it would do now. The Commission, which has the monopoly on initiating legislation at Union level, would be obliged to consider any Citizens' Initiative that it might receive, but "consideration" does not have to be more than a quick glance on the way to the waste-paper basket.

As I warned on Tuesday, I return to the issue of the threat to Ireland's very low (12.5%) corporate tax rate.

Briefly, my summary would be that there is indeed a threat. It would be misleading, if not dishonest, to say that there is no threat and/or that the veto gives us absolute protection. Ireland has already changed the rate at least twice before, explicitly in response to EU pressure.

That said, ratification of the Lisbon Treaty will have a very minor effect, if any, upon the likelihood of that threat increasing. On the Dunphy/Giles scale, it rates well short of a platini as a reason to vote "No".

I have examined the provisions cited by Mr Bonde, and my conclusion is very much in line with the useful comment left by "fd".

Bonde describes the wording of the proposed new article 113 as significant, constituting a

"clear invitation to the European Court to out-law the very distorting low Irish rate...Today the EU is only competent to harmonise tax laws if it is “necessary to ensure the establishment of the internal market”. With Lisbon the EU can also harmonise if competition is distorted - this is a much wider concept. When is competition not distorted by differences ? "

The Treaty provisions are clear and not disputed or disputable. The EU cannot impose tax harmonisation without unanimity i.e. the veto stays. Bonde's point was not to dispute that, but to note that the Treaty adds a new criterion for the assessment of changes viz. distortion of competition. I suspect that he goes too far in suggesting that the new wording is an invitation to the ECJ to strike down Ireland's corporation tax rate on the basis of its distortionary effects, and Mr Bonde is not a lawyer. Apart from anything else, the reference to such effects in the proposed art. 113 (old number 93) is in the much more logical context of transaction taxes, like V.A.T..

However, if one asks whether it is beyond the bounds of possibility that a successful legal challenge might be mounted to the Irish tax rate, and that the challenge might derive support from the wording to which Bonde draws attention, I suspect - though I am not an expert in that field - that the answer cannot be definitive. That is often the case with "expert" answers, of course.

Mr Bonde observes that "So, if I was Irish and interested in the low corporate tax - which I am not - I would propose a strong protocol to protect the low rate."

The truth is that Ireland's negotiators probably asked for such a protocol, or at least considered doing so, but decided, perhaps wisely, not to make it a break-point.

Ireland's corporate tax rate is, and always will be, under threat. No single provision in the Lisbon Treaty directly makes that threat any greater than it already is. The French moves to which Mr Bonde refers will not cease if Lisbon falls.

All that said, if the Treaty succeeded in what some say is its main aim of "streamlining" the workings of Union government, then anomalies such as our tax rate be will less likely to survive. If one ignores the economic benefits of further integration and the reduction of barriers to trade and competition, and focusses exclusively on the tax rate, then, one could rationalise it as a reason to vote against the Treaty.

That would barely even rate a "dunphy" on the Dunphy/Giles scale though, would it ?

I had not intended to revisit this issue so soon (or even at all) and would probably not be doing so but for the mention of Cork in this comment by the redoubtable Jens-Peter Bonde(it is close to the bottom of the web-page).(The comment was brought to my attention by fellow-Corkman, the indefatigable Tony Coughlan).

Mr Bonde believes that the Court of Justice could outlaw what he calls our very distorting low corporation tax rate by use of a new provision to be introduced by the Lisbon Treaty. It seems to me that he does make a new and potentially important point on the difference between the requirement for unanimity on a possible new EU tax policy, and the possibility that a particular existing tax regime, such as the Irish one, might be found to be distortionary. The veto would be of little help in the latter scenario.

The issue just won't go away - even though, as I have said, it leaves me somewhat cold - and I doubt that the Referendum Commission's opinion on itwill end the debate. I have not yet read that opinion yet, and had been planning to avoid doing so; but Mr Bonde has now piqued my interest.

Be warned that this means that I will have to address the issue yet again.

Opponents of the Treaty tend to suggest that there is a threat to Ireland's freedom to set its own tax rates, but this is not an issue for me in considering how to vote, for two reasons.

First, it seems to me that it is unlikely that those with a direct involvement in Irish corporate affairs would be as unworried about this possibility as they clearly are, if there actually was a realistic threat.

My second reason possibly shows what a "good European" I am really, notwithstanding my increasing scepticism about "the project". You see, I am somewhat persuaded that it is necessary for the Single Market which has been so good for Ireland for harmonisation of tax rates to be better.

I sat into the car this morning and, for the umpteenth time - a pleasure on each occasion - was greeted with the Amy Winehouse version of "Valerie"(I would credit the writer if I could find out who it was). And I looked across the land and thought of all the things that it could mean and in my head I got a picture of .... Valery Giscard d'Estaing.

Asked by the EC to head an effort to "bring Europe closer to its People" in line with the Laeken Declaration, Giscard arguably achieved the opposite with his (some say) onomatopoeiac Constitution project "EUC" for which no-one had asked and which in turn has led to the even yukkier (all agree) Lisbon Treaty.

Well Sometimes I Go Out, By Myself, And I talk down to voters

And I Think Of All The Things, Of What You Did, And in my head I Paint A Picture

Since demotion, Well My Pitch's Been A Mess, And I Miss the Laeken thing, And The tameness of the Press

Oh Won't You Come On Over, Stop Making A Fool Out Of Me, Why Dont You Come On Over, Va- a -alery

Valer-y-y

Valery

Valery

Did You Have To write a Con, Put the whole project Up As one, Did You Get A Good Lawyer

You bloody blew it all, I Hope You Find The Right Pol, Who'll Fix It For You

Are You Speaking Anywhere, Change The Colour Of Your PR, And Are You Busy

It needs work, and please feel free to take it on and finish it. I see it as one for Dick Roche. I suspect, though, that our "Minister for Europe" does not want Valery to "come on over".

Kevin "The Colonel"Myers is a columnist who has often provoked me to fury with his whacky contrarianism, but occasionally he gets it just right. (Indeed, both have occurred simultaneously once or twice !)

His column today in "The Irish Independent" (I got a free copy on the Park & Ride bus, since you ask) seems to me to fall into the latter category.

Highlights for me were:

I have not read the Lisbon Treaty. I tried.The Lisbon phonebook is more fun.

... the other extreme, the one that scolds us for being bad boys, and which warns we'll start chucking one another into gas chambers unless we obey the latest EU directive on bagpipe -noise, or the colour of our lawns, why, that encompasses almost our entire political class ... Mary Hanafin actually said that unless the European project was fully realised, the alternative was another Auschwitz

Merely because the Shinners were pockmarked savages with the blood of thousands of innocents on their hands in the past, doesn't mean they're always wrong today. And on the future of Ireland, they're right.Moreover, you can hardly celebrate the wicked obscenity of 1916 today, as Fianna Fail and Fine Gael apparently do, and in the same breath celebrate the loss of sovereignty implicit in the current Eurination, as they also do.

Note that I do not necessarily agree with the assessment of SF's view of the future of Ireland. And I don't understand the reference to the Battle of the Somme: I thought that the Colonel rather glorified in that obscenity ... oh wait !

Nor have I finally decided to vote against the Treaty.

Some cite the EU's new(ish)Charter of Fundamental rights as a reason to vote in favour of the Lisbon Treaty.

I have never seen how that could stand up to any analysis: even if the Irish Constitution's own provisions are not deemed adequate, Irish citizens have access to the protection of the European Convention on Human Rights ("ECHR"). What could the EU add to that ?

Well, the answer is "nothing at all"and Ralf Grahn's excellent commentary confirms that no-one (except misguided or mendacious treaty advocates) is really pretending any different.

He points out that:

Interestingly, the Charter does not confer any new rights on the citizens of the European Union. The rights and principles mentioned are all derived from the Treaties and existing EU legislation, the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms and other international documents.

There is a reason that making the ECHR redundant for EU citizens would anyway be a bad idea. That reason is this:At present, the ECHR covers countries such as Russia which have no prospect of becoming EU members. If the EU effectively withdrew from the Convention, I contend that protection of Convention rights in places like Turkey and Russia would be weakened. Who wants that ?