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  1. #31
    He3 He3 is offline

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    Quote Originally Posted by whooley View Post
    I think that what is meant is that in relation to measures adopted under the simplified revision procedure, Mr Kenny's consent at a European Council binds the government to ratify whatever Mr Kenny agrees to. I would assume, however, that the government's ability to secure subsequent ratification depends on it commanding a Dáil majority for the relevant vote.

    If the government tries but fails to get something through the Oireachtas, then the government has presumably none the less fulfilled its obligation to its EU partners, even while failing in the ratification process?

    Of course our whip system makes such an event unlikely.

    If my reading of the situation is incorrect, I welcome the inevitable corrections.
    See post #5, including this from Hogan J in the Doherty judgment, with emphasis on the last nine words:

    58. This is further underscored by the fact that the European Council decision is – on this argument - a “decision” for the purposes of Article 288 TFEU which is binding in its entirety on the Member States and that no actions may be taken by individual Member States which would weaken the effectiveness of that decision or which exceed the range of discretion accorded to Member States by the decision: see, e.g., Case C72/95 PK Kraaijeveld [1996] ECR I -5403.

    If this is correct, then it follows that the reference in Article 48(6)TEU to “approval” in accordance with the respective constitutional requirements is a pure formality. A further consequence of this argument would seem to be that the Government could agree to a Treaty amendment using the simplified revision procedure, leaving no role at all for even parliamentary ratification.
    The correct answer to the question posed by stopdoingstuff is Yes.
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  2. #32
    Al. Al. is offline

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    Quote Originally Posted by Windowshopper View Post
    The parliamentary system much like other countries which were part of the British empire copied many from aspects from the Commons.

    Westminster system - Wikipedia, the free encyclopedia
    Wikipedia's not an authoritative source; it approaches being authoritative only based on the sources it quotes, and that article is not very well sourced (three references), so a lot of that might be someone's personal opinion (since one of the sections has the "original research" tag, it becomes suspect).
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  3. #33
    Al. Al. is offline

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    Quote Originally Posted by He3 View Post
    Quote Originally Posted by me View Post
    So Mr Kenny is just like Governor Tarkin then?
    Who?
    This fellow.

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  4. #34
    TommyO'Brien TommyO'Brien is offline
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    Quote Originally Posted by He3 View Post
    His description of the consequences shows that the claim would mean that 'approval in accordance with Ireland's constitutional requirements' is reduced to a mere rubber stamp:



    Remember 2008? These other eminent lawyers, including an ex AG, academics, and a couple of recently appointed Judges, will be surprised. They had told us (during Lisbon) the exact opposite of what the Government lawyers now tell the High Court:

    ''Despite statements to the contrary, this treaty makes it clear that any future changes to the EU Treaties will continue to have to be ratified in accordance with the constitutional requirements of each member-state, which in Ireland's case is by referendum.

    This Treaty is very important for the future of Ireland and Europe. - Yours, etc,


    DAVID ANDREWS SC, MICHAEL BINCHY, DAVID BYRNE, KATE COLLEARY, SHARON DALY, RICHARD DEVEREUX, PAUL EUSTACE, DAVID GEARY, APRIL GILROY, RICHARD HAMMOND, GERRY KELLY SC, MARTIN G. LAWLOR, CHARLES MEENAN SC, HUGH I. MOHAN SC, COLM MacEOCHAIDH, EOIN McCULLOUGH SC, UNA McGURK SC, PATRICK O'CONNOR, JIM O'CALLAGHAN, RODERIC O'GORMAN, FERGUS O'HAGAN SC, KEVIN O'HIGGINS, MICHAEL O'KENNEDY SC, DESMOND O'MALLEY, ISEULT O'MALLEY SC, Cllr OISIN QUINN, Senator EUGENE REGAN SC, RORY STAINES, ERCUS STEWART SC, DECLAN J. WALSH, TONY WILLIAMS,

    Irish Alliance for Europe''.
    Your ability to completely misunderstand things its getting tedious.

    You know full well that in judicial reviews, judgements explore multiple options and interpretations. That does NOT mean the courts accept the interpretations, merely that it is EXPLORING them.

    The clue is on the very first word - IF.

    IF this is correct, then it follows that the reference in Article 48(6)TEU to “approval” in accordance with the respective constitutional requirements is a pure formality. A further consequence of this argument would seem to be that the Government could agree to a Treaty amendment using the simplified revision procedure, leaving no role at all for even parliamentary ratification.
    He is exploring a hypothesis, NOT stating it is correct. It is what judges do in judgements in reaching conclusions.

    The Government's lawyers did NOT tell the court that the Taoiseach can agree EU treaty amendments and tie us to them. There are two steps involved in the process. One is the signing of treaties, which is governed by the Geneva Conventions. The other is the ratification of treaties, which is governed by Irish constitutional law. The issue being discussed is concerned with the signing.

    This has been explained to you over and over, in referendum after referendum, but you seem incapable of understanding the difference either between theoretical explorations which the judge used with the word 'If' being the clue or between the fundamental difference between step 1, which is covered by the Geneva Conventions, and step 2 which is covered by the Bunreacht and that is issue being debated is the legal effects of step 1 NOT step 2.
    Last edited by TommyO'Brien; 9th July 2012 at 01:26 AM.
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  5. #35
    He3 He3 is offline

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    Quote Originally Posted by TommyO'Brien View Post
    Your ability to completely misunderstand things its getting tedious.

    You know full well that in judicial reviews, judgements explore multiple options and interpretations. That does NOT mean the courts accept the interpretations, merely that it is EXPLORING them.

    The clue is on the very first word - IF.



    He is exploring a hypothesis, NOT stating it is correct. It is what judges do in judgements in reaching conclusions.

    The Government's lawyers did NOT tell the court that the Taoiseach can agree EU treaty amendments and tie us to them. There are two steps involved in the process. One is the signing of treaties, which is governed by the Geneva Conventions. The other is the ratification of treaties, which is governed by Irish constitutional law. The issue being discussed is concerned with the signing.

    This has been explained to you over and over, in referendum after referendum, but you seem incapable of understanding the difference either between theoretical explorations which the judge used with the word 'If' being the clue or between the fundamental difference between step 1, which is covered by the Geneva Conventions, and step 2 which is covered by the Bunreacht and that is issue being debated is the legal effects of step 1 NOT step 2.
    I admit I have trouble following that.
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  6. #36
    Analyzer Analyzer is offline
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    Quote Originally Posted by Burnout View Post
    Enda's bosses' lobbyists in Brussels with that type of power. That is scary stuff indeed. Just reading it now by VB.
    Fixed that for ya !
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  7. #37
    SilverSpurs SilverSpurs is offline
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    Quote Originally Posted by TommyO'Brien View Post
    Your ability to completely misunderstand things its getting tedious.

    You know full well that in judicial reviews, judgements explore multiple options and interpretations. That does NOT mean the courts accept the interpretations, merely that it is EXPLORING them.

    The clue is on the very first word - IF.



    He is exploring a hypothesis, NOT stating it is correct. It is what judges do in judgements in reaching conclusions.

    The Government's lawyers did NOT tell the court that the Taoiseach can agree EU treaty amendments and tie us to them. There are two steps involved in the process. One is the signing of treaties, which is governed by the Geneva Conventions. The other is the ratification of treaties, which is governed by Irish constitutional law. The issue being discussed is concerned with the signing.

    This has been explained to you over and over, in referendum after referendum, but you seem incapable of understanding the difference either between theoretical explorations which the judge used with the word 'If' being the clue or between the fundamental difference between step 1, which is covered by the Geneva Conventions, and step 2 which is covered by the Bunreacht and that is issue being debated is the legal effects of step 1 NOT step 2.
    In other words the usual TOB non-denial denial.
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  8. #38
    ibis ibis is offline

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    Another shock!! alarm!! thread about something that is hardly surprising. For the life of me, I still can't quite decide whether He3 genuinely can't understand these things, or understands them perfectly well and can see exactly how to help others misunderstand them. I lean towards the latter interpretation, though - the misunderstandings are always exactly what one would expect from such an agenda, plus he's been doing the same line for years now.

    There is no 'coup'. The government has the power to ratify some things on behalf of the country, including EU treaty changes., without reference to either the Oireachtas or the public. They have always had that power. It has not been changed recently, either by Irish law or by Lisbon - and Lisbon couldn't change it, because it is solely a matter of Irish law.

    All that arises here is the question of whether the government has an obligation, having consented to a Treaty change at the European Council level, to do everything in its power to ratify that change - to which the answer appears to be yes, it does.

    Where such a change can be ratified purely by the government, then, without reference to the Oireachtas or the public - as determined by Bunreacht, and solely by Bunreacht - the government not only can ratify the change, but is obliged to do so by virtue of its own agreement.

    Whether the government can ratify without reference to the Oireachtas or the public is determined by the Constitution. If the treaty change involves a charge on public funds it must be put before the Oireachtas, according explicitly to Bunreacht:

    2° The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.
    If the treaty change involves any limitation of the government's freedom of action (aka 'sovereignty') then, by virtue of the Crotty judgement, the change must be ratified by the people in referendum.

    If neither a charge on public funds nor limitation of sovereignty is involved, the government have, and always have had, the power to ratify without reference to the Oireachtas or the public. Thus, of the three recent treaties/amendment:

    1. the Article 136 amendment can be carried out purely by the government - it's irrelevant that it has been done through the simplified amendment system introduced at Lisbon, all that matters is that this amendment involves neither a charge on public funds nor a limitation of sovereignty

    2. the ESM Treaty must be laid before the Dáil, because it involves a charge on public funds, but does not require a referendum, because it does not contain any limitation on the government's freedom of action

    3. the Fiscal Treaty had to be put to the people at referendum, because it involved limitations on the government's freedom of action in setting budgets

    If the government agrees to a treaty or treaty amendment in good faith, it is then bound to follow through as far as lies within its powers. In the case of (1), it must therefore ratify, and does not have the option, as claimed by Doherty, of changing its mind - which is all that has been settled here. In the case of (2), the government must lay the matter before the Dáil, and push for the Dáil's acceptance of it. Given our whip system, this is largely equivalent to (1), although it theoretically remains the case that the Dáil could vote it down. In the case of (3), the government must put the matter forward to referendum - it is however then prevented by the McKenna judgement (again, an internal Irish matter) from using government funds to urge a Yes vote, which otherwise it would also be bound to do. It cannot, however, not hold a referendum, or urge a No vote, or in any other way attempt to have the public not endorse the decision. It is bound, in every case, by its own original agreement - because otherwise that agreement would have been made in bad faith. Neither the Dáil nor the public, on the other hand, are bound by the government's agreement - they are legally and constitutionally separate decision-makers.

    This was all discussed before the referendum - principally in threads started regularly by He3 - and I said all of the above on those threads as well. That it comes as an unpleasant surprise to some posters is the result not of a coup, but of their own determined refusal to face facts. In He3's case, of course, the surprise is feigned - I appreciate that this aspect of the Irish constitution is presumably a genuine issue for He3, which is fair enough, but the fake shock is purely a demagogic tactic.
    Last edited by ibis; 9th July 2012 at 10:19 AM.
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  9. #39
    SilverSpurs SilverSpurs is offline
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    Quote Originally Posted by ibis View Post
    Another shock!! alarm!! thread about something that is hardly surprising. For the life of me, I still can't quite decide whether He3 genuinely can't understand these things, or understands them perfectly well and can see exactly how to help others misunderstand them. I lean towards the latter interpretation, though - the misunderstandings are always exactly what one would expect from such an agenda, plus he's been doing the same line for years now.

    There is no 'coup'. The government has the power to ratify some things on behalf of the country, including EU treaty changes., without reference to either the Oireachtas or the public. They have always had that power. It has not been changed recently, either by Irish law or by Lisbon - and Lisbon couldn't change it, because it is solely a matter of Irish law.

    All that arises here is the question of whether the government has an obligation, having consented to a Treaty change at the European Council level, to do everything in its power to ratify that change - to which the answer appears to be yes, it does.

    Where such a change can be ratified purely by the government, then, without reference to the Oireachtas or the public - as determined by Bunreacht, and solely by Bunreacht - the government not only can ratify the change, but is obliged to do so by virtue of its own agreement.

    Whether the government can ratify without reference to the Oireachtas or the public is determined by the Constitution. If the treaty change involves a charge on public funds it must be put before the Oireachtas, according explicitly to Bunreacht:



    If the treaty change involves any limitation of the government's freedom of action (aka 'sovereignty') then, by virtue of the Crotty judgement, the change must be ratified by the people in referendum.

    If neither a charge on public funds nor limitation of sovereignty is involved, the government have, and always have had, the power to ratify without reference to the Oireachtas or the public. Thus, of the three recent treaties/amendment:

    1. the Article 136 amendment can be carried out purely by the government - it's irrelevant that it has been done through the simplified amendment system introduced at Lisbon, all that matters is that this amendment involves neither a charge on public funds nor a limitation of sovereignty

    2. the ESM Treaty must be laid before the Dáil, because it involves a charge on public funds, but does not require a referendum, because it does not contain any limitation on the government's freedom of action

    3. the Fiscal Treaty had to be put to the people at referendum, because it involved limitations on the government's freedom of action in setting budgets

    If the government agrees to a treaty or treaty amendment in good faith, it is then bound to follow through as far as lies within its powers. In the case of (1), it must therefore ratify, and does not have the option, as claimed by Doherty, of changing its mind - which is all that has been settled here. In the case of (2), the government must lay the matter before the Dáil, and push for the Dáil's acceptance of it. Given our whip system, this is largely equivalent to (1), although it theoretically remains the case that the Dáil could vote it down. In the case of (3), the government must put the matter forward to referendum - it is however then prevented by the McKenna judgement (again, an internal Irish matter) from using government funds to urge a Yes vote, which otherwise it would also be bound to do. It cannot, however, not hold a referendum, or urge a No vote, or in any other way attempt to have the public not endorse the decision. It is bound, in every case, by its own original agreement - because otherwise that agreement would have been made in bad faith. Neither the Dáil nor the public, on the other hand, are bound by the government's agreement - they are legally and constitutionally separate decision-makers.

    This was all discussed before the referendum - principally in threads started regularly by He3 - and I said all of the above on those threads as well. That it comes as an unpleasant surprise to some posters is the result not of a coup, but of their own determined refusal to face facts. In He3's case, of course, the surprise is feigned - I appreciate that this aspect of the Irish constitution is presumably a genuine issue for He3, which is fair enough, but the fake shock is purely a demagogic tactic.
    Once more from the top: Can the EU treaties be amended without a treaty or can't they???
    The answear is yes they can thanks to Lisbon so the Lisbon treaty made the EU treaties self amending albeit subject to some restrictions and limitations. What you are trying to do here is the old europhile trick of the non-denial denial.

    You are denying that Enda & Co. can bring a bottle of tippex and 27 biro's to a meeting of the European council which is merely a strawman to knock down. No-one was claiming that the self amending clauses are carte blanche or are not subject to limitations and restrictions. What we were claiming is that the EU treaties could be changed without a treaty (TRUE) and that some important changes could be made via this vehicle (TRUE).

    This is what is so frustrating about attemts to discuss the EU or any EU related topic. Any attempt to offer criticism or unhappiness with matter EUish is met with a spin machine of non-denial denials, strawmen, ad hominems and diversion.
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  10. #40
    ibis ibis is offline

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    Quote Originally Posted by SilverSpurs View Post
    Once more from the top: Can the EU treaties be amended without a treaty or can't they???
    Yes, they can be amended without a new treaty. That was the point of the simplified revision mechanism, and exactly what I and others said during the Lisbon campaigns, when the No side were running around pretending it would mean "no more referendums evar!".

    Quote Originally Posted by SilverSpurs View Post
    The answear is yes they can thanks to Lisbon so the Lisbon treaty made the EU treaties self amending albeit subject to some restrictions and limitations. What you are trying to do here is the old europhile trick of the non-denial denial.
    No, this one is the old trick of explaining facts very patiently to people who don't want to understand them, or who are running round the field with the goalposts trying to pretend their opponents' positions are changing.

    Quote Originally Posted by SilverSpurs View Post
    You are denying that Enda & Co. can bring a bottle of tippex and 27 biro's to a meeting of the European council which is merely a strawman to knock down. No-one was claiming that the self amending clauses are carte blanche or are not subject to limitations and restrictions. What we were claiming is that the EU treaties could be changed without a treaty (TRUE) and that some important changes could be made via this vehicle (TRUE).

    This is what is so frustrating about attemts to discuss the EU or any EU related topic. Any attempt to offer criticism or unhappiness with matter EUish is met with a spin machine of non-denial denials, strawmen, ad hominems and diversion.
    Bollocks. What was claimed during Lisbon was that the simplified 'self-amending' procedure meant that referendums would be "bypassed", and that there would never be any EU referendums ever again, because Crotty would no longer be applied. In other words, the No side claim was that Lisbon changed how Ireland ratified treaty changes, which was utter nonsense - but it was what was claimed, not what you're now claiming was claimed.

    The claim you lay out here - which is accurate - is not what was claimed, but represents, instead, a large shift of your goalposts, apparently just so that you can claim to have been right all along. On the other hand, it's nice to see that you do eventually update your position to reflect what is really the case, even if it's what your opponents claimed rather than you - nice, but nevertheless kind of pitiful, because it suggests an inability to admit to yourself, or perhaps just to publicly admit, that you might not know absolutely everything.

    It's always been the case that EU treaty changes could be made without referendums - but without the simplified revision mechanism a treaty convention and an amending treaty was required, and that was so much effort that it was saved up for occasions when there was a lot of changes to make - one or some of which invariably triggered a referendum here. The simplified revision mechanism, though, has absolutely nothing to do with the Constitutional requirements for ratification in Ireland in itself - the only change is that now amendments can be done singly, which makes it possible to see which amendments need what kind of ratification step, as opposed to lumping them all together in a way that makes the most significant requirement the minimum for all.

    In other words, nothing has changed.
    Last edited by ibis; 9th July 2012 at 11:16 AM.
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