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About LinkBacksThere are other slight changes to it but I have neither the time nor the patience.
It does not detract however, from the fact the Lisbon is bad for Europe.
There are other slight changes to it but I have neither the time nor the patience.
It does not detract however, from the fact the Lisbon is bad for Europe.
Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them.
- [SIZE=2]Niccolò Machiavelli[/SIZE]
The claim, properly, is that the text of the treaty acquires a legal standing equivalent (or superior) to the text of the Constitution; the point is, I imagine, a legal one, rather than a textual one. No?Originally Posted by ibis
Sure - but the referendum would still be on the whole treaty in every practical sense, since a No at the referendum would prevent the ratification completely. Possible situations:
1. Dáil ratifies, referendum passes = Treaty can be ratified
2. Dáil ratifies, referendum fails = Treaty cannot be ratified
So the ratification still depends 100% on the referendum result, exactly as it does now. The whole "having the Dáil ratify some of it" doesn't achieve anything.
We don't have referendums because a bit of the Treaty disagrees with Bunreacht. Nothing in the SEA disagreed with Bunreacht.
The Crotty judgement relies on the following:
1. the people are sovereign
2. the government exercises sovereignty on behalf of the people
3. the government may not agree to limit the sovereignty of the people
4. only the people may agree to limit their sovereignty
5. the free exercise of foreign policy is, par excellence, the exercise of national sovereignty
6. the SEA contained a clause that limited the free exercise of foreign policy
7. ratifying the SEA would therefore have limited the sovereignty of the people
8. see (3)
9. see (4) - hence a referendum
The clause in the SEA that limited the free exercise of foreign policy was that the member states would be bound to consider the interests of other member states in the exercise of foreign policy.
Never let the best be the enemy of the good.
Agree on the above, the strict definition re Bunreacht is that the State needs the agreement of the people re foreign treaties/relations of certain nature.
That could be done by plebisicte actually ..
Or if the referendum text above was more explicit on exactly this that would be fine
The problem is that the amendment gives carte blanche to Lisbon ... so even issues beyond the strict foreign relations one are allowed into play
cYp
"Yawn , am I alive yet ?"
How so? Bunreacht contains an amendment that exempts EU legislation from Constitutional challenge. EU legislation is superior to Irish law, but Irish law is subordinate to Bunreacht.
Where, in all that, is the bit that gives an EU treaty "a legal standing equivalent (or superior) to the text of the Constitution"?
Never let the best be the enemy of the good.
The only thing it would be intended to achieve is to make the referendum digestible, instead of a "pointer" to 120,00 words : the referendum would contain the substantive issues (which might just be confined to the foreign relations one)
cYp
"Yawn , am I alive yet ?"
My diagrams aren't as good as yours but...
EU Law Bunreacht
[COLOR=White].............[/COLOR]\/
[COLOR=White].............[/COLOR]
[COLOR=White].............[/COLOR]
[COLOR=White].........[/COLOR]Irish Law
Is that it?
Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them.
- [SIZE=2]Niccolò Machiavelli[/SIZE]
May we say that any legal instrument that conflicts with an alternative instrument or text, and prevails, is superior?
Hmm.
1. Irish domestic legislation must comply with Bunreacht.
2. EU legislation cannot be challenged on the basis of Bunreacht.
3. Irish ratification of EU treaties can be challenged on the basis of Bunreacht.
It's a bit messy, but nothing in there renders EU legislation or treaties superior to Bunreacht in the sense of being able to change the effect of Bunreacht on domestic legislation. Hmm again - maybe a worked example:
1. assume a piece of Irish domestic legislation setting, say, a maximum level of nitrate fertiliser on fields (say 1kg/m2).
2. further assume that someone takes a case that this legislation is unconstitutional, and wins (no, don't ask for an actual bit of Bunreacht that would really apply)
3. that legislation can therefore be struck down
Now:
1. assume an EU Directive setting a maximum level of nitrate fertiliser on fields (at, say 2kg/m2).
2. that legislation is immune from constitutional challenge - 2kg/m2 will be the maximum level of nitrate on fields once the EU Directive is enacted into Irish law
But:
3. assume that the Irish government decides to go further than the 2kg/m2 limit set by the EU legislation, and enact a limit of 1kg/m2 as per the original legislation.
4. now, the level of 2kg/m2 is a limit the government must enact as part of its EU obligations (and is thereby protected from constitutional challenge)
5. but...the additional restriction of 1kg/m2 is not required as part of the government's EU obligations, and is still subject to the original constitutional challenge.
6. that legislation can therefore be struck down.
Clear as mud?
Never let the best be the enemy of the good.
A diagram might help.
Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them.
- [SIZE=2]Niccolò Machiavelli[/SIZE]
