So what will we be voting on come June?

Yesterday the Dáil started debating the Twenty-eighth Amendment of the Constitution Bill 2008, but what will this actually do in terms of our constitution I hope to show changes on an articles by article basis.

The Bill concerns Article 29 of the Constitution. It starts off by deleting Article 29.4.9 which states

The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the Treaty referred to in subsection 7° of this section where that common defence would include the State.

It also deletes Article 29.4.11

11° The State may ratify the Agreement relating to Community Patents drawn up between the Member States of the Communities and done at Luxembourg on the 15th day of December, 1989.

These take out artilcles that refer to decisons as the Lisbon Treaty amends the previous treaty so rewording is needed.

Article 29.4.10 becomes Article 29.4.9.

New Article 29.4.10

10° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007, and may be a member of the European Union established by virtue of that Treaty.

This article basicly allows the state to ratify the Lisbon Treaty.

New Article 29.4.11

11° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the
obligations of membership of the European Union referred to in subsection 10° of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.

This article gives constitutional backing to the Supremcy of EU law which has been laid down by the European Court of Justice in the case Flaminio Costa v. ENEL [1964]. This is what we signed up to in 1973, so is no surprise that it is being given constitutional backing.

New Article 29.4.12

12° The State may exercise the options or discretions provided by or under Articles 1.22, 2.64, 2.65, 2.66, 2.67, 2.68 and 2.278 of the Treaty referred to in subsection 10° of this section and Articles 1.18 and 1.20 of Protocol No. 1 annexed to that Treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

Article 1.22 of the treaty provides for Enhanced Cooperation among groups of Member States.
Article 2.64 deals with a myriad of issues mainly Security, Discrimination, Enhanced Cooperation and the role of National Parliaments.
Article 2.65 deals Policing, border checks and Asylum.
Article 2.66 deals with Judical Cooperation in Civil Matters.
Article 2.67 deals with Judical Cooperation in Criminal Matters.
Article 2.68 deals with Police Cooperation.
Article 2.278 deals with the specifics of Enhanced Cooperation.
This amendment will basically allow Ireland to participate in schemes in these areas, when it so wishes. Basically an Opt-Out.

New Article 29.4.13

13° The State may exercise the option to secure that the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on the European Union and the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community) shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

This is another Opt-out which allows us to opt in when we decide. This Protocol was agreed by the Treaty of Amsterdam.

New Article 29.4.14

14° The State may agree to the decisions, regulations or other acts
under—

  • i Article 1.34(b)(iv),
  • ii Article 1.56 (in so far as it relates to Article 48.7 of the Treaty referred to in subsection 4° of this section),
  • iii Article 2.66 (in so far as it relates to the second subparagraph of Article 65.3 of the Treaty on the Functioning of the European Union),
  • iv Article 2.67 (in so far as it relates to subparagraph (d) of Article 69A.2, the third subparagraph of Article 69B.1 and paragraphs 1 and 4 of Article 69E of the Treaty on the Functioning of the European Union),
  • v Article 2.144(a),
  • vi Article 2.261 (in so far as it relates to the second subparagraph of Article 270a.2 of the Treaty on the Functioning of the European Union), and
  • vii Article 2.278 (in so far as it relates to Article 280H of the Treaty on the Functioning of the European Union),

of the Treaty referred to in subsection 10° of this section, and may also agree to the decision under the second sentence of the second subparagraph of Article 137.2 of the Treaty on the Functioning of the European Union (as amended by Article 2.116(a) of the Treaty 1referred to in the said subsection 10°), but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

More optouts this time the articles are as follows:
Article 1.34(b)(iv) deals with the European Council should decide that the Council should use Qualified Majority Voting (QMV) in areas not specified by the Treaty. Nice to see that this will be sunject to Oireachtas Approval.
Article 1.56 deals with further revisions to the Treatys. Note this treaty is not self amending! “That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.” -Article 1.56.6
Articles 2.66 and 2.67 I have already mentioned and is about Judical Cooperation.
Article 2.144(a) changing the Legislative procedure to “ordinary legislative procedure” by decesion of the European Council.
Article 2.261 refers to changing the budget to QMV.
Article 2.278 again deals with enhanced coperation.
Article 2.116(a) deals with procedures.
This, I think is a good addition to the constitution as it will allow the Both Houses have a say in matters on the running of the EU and future changes to the running of the EU.

New Article 29.4.15

15° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to—

  • i Article 1.2 of the Treaty referred to in subsection 7° of this section, or
  • ii Article 1.49 of the Treaty referred to in subsection 10° of this section,

where that common defence would include the State.

This is an updating of the old Article 29.4.9 due to the Article in the treaty being changed and mentioned in two treaties now (Nice and Lisbon). This article will ensure that Ireland will not take part in an ‘European Army’ or anything else the no camp would like to say.

Overall I think this is a good amendment to the Constitution. It will give the oireachtas some say in when Ireland will opt in to decisions. It keeps us out of a Common Defence Pact. It clears up the ambiguity of supremecy of EU law by giving it a constitutional backing. Well done to those who drafted the Amendment a good piece of work! Role on the vote!

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Sources:
BUNREACHT NA hÉIREANN – CONSTITUTION OF IRELAND, Department of An Taoiseach
Twenty-eighth Amendment of the Constitution Bill 2008Oireachtas.ie
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007EUR-LEX
Twenty-eighth Amendment of the Constitution of IrelandWikipedia

Author: Stephen

Cork born and bred, proud European and Irishman. Involved in many organisations and politics. Also writes for SpirtualityIreland.org and UCC Express.

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