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Ireland's political and cultural magazine
74 February 2016
O
ne value of the 1916 Rising commem-
orations is to highlight the contrast
between the aspirations of those
who set out to establish an inde
-
pendent Irish State for the whole
island of Ireland and the reality of what exists
today – a partitioned country whose native lan
-
guage, Irish, is on the point of death as a
cradle-spoken tongue, and in which the State
that did come from the independence move-
ment has been reduced to provincial or regional
status in a supranational EU quasi-Federation
that now makes most of our laws.
The Easter Proclamation read: “We declare
the right of the people of Ireland to the owner-
ship of Ireland and to the unfettered control of
Irish destinies to be sovereign and
indefeasible”.
“Indefeasible” means cannot be lost. That
right may notionally exist still, but the reality of
a sovereign Irish State in which its own Parlia-
ment and Government are the sole source of the
laws prevailing in its territory has clearly been
lost, as with the 27 other EU countries, through
membership of the EU. Growing public aware-
ness of this fact, in Ireland and other EU
countries, is at the root of the current EU
discontents.
Article 29.4 of the Constitution, which was
inserted by referendum in 1972 to enable Ire-
land to join the then European Economic
Community (EEC), gives European law primacy
over any countervailing Irish law. It reads: “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, or pre-
vents laws enacted, acts done or measures
adopted by the said European Union from
having the force of law in the State”.
Realisation of the implications of suprana-
tional EU law being given primacy in this way
over the provisions of the 1937 Irish Constitu-
tion that he had personally drafted led then
President Eamon De Valera to say, somewhat
poignantly, to his family on New Year’s Eve
1972, the day before this change took place: “I
am the first and last President of an independ-
ent Irish Republic”. So Eamon O Cuív TD, De
Valera’s grandson, who was present on that
occasion, told me*.
The loss of independence has gone much fur-
ther since. In 1999 Ireland abolished its national
currency and joined the Eurozone, thereby aban-
doning control of either its rate of interest or its
exchange rate - the former essential for control-
ling credit, the latter for influencing economic
competitiveness. EU Commission President
Romano Prodi underlined the political signifi-
cance of this when he said at the time, “The two
pillars of the Nation State are the sword and the
currency, and we have changed that”.
The 1987 Single European Act, the 1992
Maastricht Treaty, the 1998 Amsterdam Treaty
and the 2001 Nice Treaty saw further growth of
EU powers and simultaneous diminution of
national State powers. This culminated in the
2009 Treaty of Lisbon, which gave the EU the
constitutional form of a supranational Federal
State.
Lisbon incorporated 99% of the provisions of
the Treaty Establishing a Constitution for
Europe that had been rejected by French and
Dutch voters in referendums in 2005. Whereas
the rejected constitutional treaty gave the EU a
Federal Constitution directly, the Treaty of
Lisbon did so indirectly, in the form of amend-
ments to the existing EU treaties.
Although the legal content of the two treaties
was virtually the same, the French and Dutch
were not allowed referendums on Lisbon. Ire-
land was the only EU country to be allowed that,
because of the Supreme Court’s decision in the
1987 Crotty case that, as the Irish people were
the repositories of State sovereignty, only they
could agree to surrender it to the EU through a
referendum. When Irish voters rejected ratify-
ing Lisbon in 2008, they were made vote on
exactly the same treaty the following year to
deliver a different result.
In the Lisbon Two referendum the constitu-
tional amendment permitting Lisbon’s
ratification differed from that in Lisbon One in
that it included the sentence: “Ireland affirms
1916 values diverted
The EU and the defeasible control of
Irish destinies
by Anthony Coughlan
No provision of the
Constitution invalidates
laws necessitated
by the obligations of
membership of the
European Union
INTERNATIONAL
February 2016 75
its commitment to the European Union...”.
Here was a supposedly independent Irish
State affirming a constitutional “commitment”
to a superior entity made up of other States -
surely a remarkable development? Yet the
Explanatory Handbook which the statutory Ref-
erendum Commission sent to all voter
households, supposedly to inform them what
the referendum was about, made no reference
to this change. Neither, so far as I know, did
anyone in the Irish media.
The Lisbon Treaty replaced the existing Euro-
pean Community with a European Union that
had full legal personality and its own constitu-
tion for the first time. It made citizens of the
different Member States into real citizens of this
new federal-type Union for the first time also.
One can only be a citizen of a State. Before
Lisbon, citizenship of the then embryonic EU
was stated to “complement” national citizen-
ship. It was an essentially notional or honorary
concept. The Lisbon Treaty provided that EU citi-
zenship should be “in addition to” one’s
national citizenship, just as citizens of provin-
cial states like California, Massachusetts,
Bavaria or Brandenburg have two citizenships,
for they are citizens also of their respective Fed-
eral States, the USA and Germany.
Lisbon also gave explicit primacy to EU law
over national law for the first time in an EU
treaty. In most years nowadays arguably the
majority of laws that are put through the
national Parliaments of the EU Member States
come from Brussels, although most people do
not realise this. Eur-Lex estimates that there are
currently some 134,000 EU rules, international
agreements and legal acts binding on or affect-
ing citizens across the EU. These include 1842
EU Directives, 11,547 Regulations, 18,545 Deci-
sions, 15,023 EU Court verdicts and 62,397
international standards which the EU has
signed up to and which are therefore binding on
all its 28 members. If a Member States does not
obey any one of these, the EU Court of Justice
can impose heavy daily fines to enforce
compliance.
The EU Treaties pre-
vent voters at national
level, their parlia-
m e n t s a n d
governments from
amending or abolish
-
ing a single one of
these laws or rules.
Any move entailing
changes to the Treaties
requires the unani-
mous agreement of
the governments of all
28 Member States.
Any change to these
other rules requires
either unanimity or a
qualified majority
vote. This is the practical problem facing those
who think that the EU can somehow be democ-
ratised or turned into a “Social Europe”.
The EU Treaties effectively shift power away
from citizen voters in all EU countries and from
small and middle-sized Member States to the
larger ones and to the unelected Brussels
Commission.
The post-Lisbon EU now has its own govern-
ment with a legislative, executive and judicial
arm, its own political President (Poland’s
Donald Tusk), its own citizens and citizenship,
its own human and civil rights code, its own cur
-
rency, economic policy and revenue, its own
international treaty-making powers, foreign
policy, foreign minister (High Representative),
diplomatic corps and UN voice, its own crime
and justice code and public prosecutor’s office.
It already possesses such State symbols as its
own flag, anthem, motto and annual official hol-
iday, Europe Day, 9 May.
As regards the 'State authority' of the post-
Lisbon Union, this is embodied in the EU’s own
executive, legislative and judicial institutions:
the European Council, Council of Ministers,
Commission, Parliament and Court of Justice. It
is embodied also in the Member State and their
authorities as they implement and apply EU law
and interpret and apply national law in conform-
ity with Union law. This they are constitutionally
required to do under the Lisbon Treaty, just as
in any Federation.
Thus EU ‘State authorities’ as represented by
EU soldiers and policemen patrolling Europe’s
streets in EU uniforms, are not needed as such.
Their absence makes it all the easier to hide
from ordinary citizens the reality of Europe’s
hollowed-out nation States and the failure of
their own mainstream politicians to defend
their national independence and national
democracies.
Whatever this is, and whether one thinks it is
a good thing or not, it is certainly not “the unfet-
tered control of Irish destinies” which the men
and women of 1916 fought and died for.
Anthony Coughlan is Associate Professor
Emeritus of Social Policy at Trinity College
Dublin
* He was presumably referring to the fact that in 1917
he was elected President of the post-Easter Rising
Sinn Fein, whose policy aim was to obtain interna-
tional recognition of Ireland as a Republic. He was
then elected as "Priomh Aire" (Prime Minister) of the
first Dail following the 1918 general election and was
referred to as "President of Irish Republic" during his
year in America in 1919 and was generally and popu-
larly so regarded by Irish nationalists in the
pre-Treaty period, and of course he continued to be so
regarded by the anti-Treaty side during the post-
Treaty Civil War.
His statement then implies that he regarded Irish
accession to the then EEC in January 1973 as ending
the full independence of the Irish Republic that was
based on the Constitution he had himself drafted in
1937, under which all laws for the Irish State were
made by the elected Oireachtas, for of course that
situation changed following EEC accession, when EU
law was given constitutional primacy over any con-
flicting Irish law.
De Valera would certainly have regarded his predeces-
sors Douglas Hyde and Sean T O' Kelly as presidents
of an independent Irish Republic, but his statement
implies that future presidents would not be presiding
over a State that was independent, and that would be
O Cuiv's and my own interpretation of what he said.
Did you know that the twelve-star EU flag, the
EU anthem – Beethoven’s 'Hymn to Joy' – and
the EU’s official annual holiday, Europe Day, 9
May, have no legal basis in EU law even
though they are in regular use?
These State symbols for the new Federal EU
were to be given a legal basis in the proposed
Treaty Establishing a Constitution for Europe
which the French and Dutch peoples voted
down in their 2005 referendums. When 99%
of that treaty was repackaged as the 2009
Treaty of Lisbon in the form of amendments to
the existing EU treaties, the provisions for the
flag, anthem and Europe Day were dropped.
So was the word “constitution”, even
although Lisbon actually did provide the
constitution of a legally quite new Federal-
type European Union.
These changes account for the 1% differ-
ence between the 2009 Lisbon Treaty and the
aborted 2005 Constitutional Treaty. Provision
for these State symbols was abandoned so as
not to alert citizens to the constitutional revo-
lution that was happening by means of these
two treaties. They continue in use anyway,
even without a legal basis.
In Brussels circles nowadays people are
expected to stand to attention when the EU
anthem is played, with hand on heart or arms
held at their sides, just as they do for their
national anthems - their chests doubtless
swelling with Europhiliac ardour!
