Those Guarantees...

There's a fair amount of discussion out there over the guarantees the government has been negotiating in order to get us to sign up to Lisbon. They haven't been agreed yet but I think I'm fairly safe to say that they'll fall into the Danish formula: a decision of the European Council along with a promise to tack a protocol onto the treaties at the earliest opportunity, widely anticipated to be Croatian accession in about two years time. Proponents of the treaty will say the guarantees are legally binding. Opponents will say that the treaty's content hasn't been changed. Both will be right. All the while some of us will have to whisper that since the Lisbon Treaty wasn't going to introduce conscription or force every man woman and child to have an abortion anyway, it wouldn't really matter if the guarantees didn't have legal force, as none of it was going to happen anyway!

The tragedy of EU referendums isn't that we are being asked to vote again, or that the argument will be the same as the last time, or even that the arguments will be the same as both Nice referendums, Amsterdam, Maastricht and so on. The tragedy is that it really doesn't have to be like this.

When we joined the European Community back in 1973, it was reasonably clear that we'd need to amend the Constitution. The government of the day decided on a minimalist approach. The approach was to add a single section to article 29 providing for EC membership. As enacted the Third Amendment stated:

"3° The State may become a member of the ... the European Economic Community .... No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State."

The result was an unqualified acceptance of the supremacy of European Union law over the Constitution. No part of the Constitution is, at least in theory, immune from being overridden by EU law. The provision has been amended several times but more or less remains intact. But the most noticeable element of all of this is that no other EU member state inserted a similarly unqualified provision into their constitution.

For example Article 23 of the German constitution (known as the Basic Law) says:

"(1) With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79.

(2) The Bundestag and, through the Bundesrat, the Länder shall participate in matters concerning the European Union. The Federal Government shall keep the Bundestag and the Bundesrat informed, comprehensively and at the earliest possible time.

(3) Before participating in legislative acts of the European Union, the Federal Government shall provide the Bundestag with an opportunity to state its position. The Federal Government shall take the position of the Bundestag into account during the negotiations. Details shall be regulated by a law."

What is truly astonishing about the Irish Constitution is its profound silence as to why Ireland is a member of the EU, what we want to achieve by EU membership, the procedure for ratifying EU treaties and what matters we prefer to reserve for national decision-makers. The German Basic Law provides us with a template of what we could do with our own constitution. I'm not arguing that we should copy it into the Irish Constitution, but inserting references to the "principle of subsidiarity", "basic rights" and commitment to "democratic, social and federal principles", would be a start.

There is a huge potential for a constitutional amendment on the Lisbon Treaty to spell out what the limits are in relation to the EU and, in short, to provide the electorate with the very assurances the government will be seeking for our European partners this weekend in Prague. This way, voters could, by reading a few short pages, know what they were being asked to approve, without having to read an entire treaty or study EU law in university. It's all quite simple really!