Sinn Féin response to the draft EU Constitution

15 July, 2003

Sinn Féin document outlining the party’s position on the Draft European Union Constitution

Overview

The Democratic Challenge

There is no doubt that this new EU draft constitution finally presented last week by convention president Giscard d‚Estaing represents a serious challenge for Irish society. It is a test for the Irish government in that it is they who will have to negotiate through the Inter-Governmental-Conference (IGC) not just on behalf of the 26-Country citizens but ideally on behalf of all the citizens on the island.

In Sinn Féin we are concerned that any new treaty resulting from the IGC discussions will not be put before all the people of the island in a referendum. To have an inclusive informed debate Sinn Féin believes we need not just transparency in terms of what are the government positions entering and during the IGC, but also what sort of engagement do they plan with the Irish people on the issues.

Though the consolidation and simplification of the Treaty is welcome there is a still a job to do in popularising and debating the issues at stake in the draft EU constitution. The question is whether the Dublin Government are up to this democratic challenge of facilitating a really inclusive debate to all parts of Irish society on what sort of Europe we should be part of?

The Sinn Fein view

Whatever form the draft EU constitution finally takes it will play a huge role in the shaping of Ireland over the coming decades. It is because of the seriousness of such an undertaking that Sinn Féin are offering now our first thoughts on the draft EU constitution.

As a party representing voters throughout Ireland and concerned about inequality and exploitation not just here but internationally we have grave concerns about the implications of ratifying a new constitution. Our reading of the constitution leads us to believe that the ongoing process of a developing economic and military superpower emerging will be sped up by ratifying an EU constitution.

We also believe that there are some positive aspects to this treaty that must be revisited in the coming negotiations process and fleshed out into better proposals. There is also the problem that the constitution in its current form has within it unresolved tensions between its objectives and principles, between the powers of states and the role of the EU Commission, between the desire for subsidiarity and the increased use of qualified majority voting.

Sinn Féin believes that we need to be having a debate in Ireland on these issues in the coming months. Can the EU facilitate a transnational market economy and still be a social economy with full employment as its core objective? Both of these goals are in the treaty.

While many progressive groups would welcome a charter of fundamental rights for the EU, should it be more than an appendix to the new constitution? Similarly the draft constitution rightly commits itself to the eradication of poverty outside its borders but contains no such objective for the citizens inside the internal EU borders. Could the new constitution not commit the EU governments to tackling poverty within its own borders?

In terms of partition, the treaty allows for special provisions for state aid and spending for the costs of re-unifying Germany but not for Ireland where the arguments for funding all-island infrastructure in energy, transport, telecommunications, health and education are compelling.

Sinn Féin wants to be in the forefront of the debate on what type of Europe is best for us all. This discussion document is the first of what will be many interventions over the coming negotiations process.

Should there be an EU Constitution?

Sinn Féin believes that democracy is built upon the sovereignty of the people expressed in the form of the democratic nation-state. Democracy is best exercised at local and national level where the citizen and the community have maximum input. The democratic sovereign state is the basis for social progress and for international co-operation and solidarity. These basic principles inform our engagement with the European Union.

We have a policy of critical engagement with the EU. Without prejudice to the principles set out in the above paragraph, that policy entails the assessment of all aspects of the EU using the criteria of transparency, accountability, democracy and equality to establish whether those aspects should be supported or opposed. This is the approach we have taken in relation to the Draft European Constitution.

Sinn Féin agrees that the simplification and consolidation of existing EU Treaties is necessary. But we are opposed to such a process being used to diminish national sovereignty and increase the power of the EU as the Draft Constitution does. We are opposed to the development of the European Union into a state therefore we do not accept the argument that the EU must have a Constitution.

The Draft Constitution has been portrayed as a necessary consolidation and simplification of existing Treaties. But it is much more than that. The Draft Constitution:

• makes fundamental changes in the structures of the EU

• Gives those structures more powers.

• Gives the EU a single legal personality for the first time

The effect is:

• To shift the balance of power yet further from sovereign national parliaments and towards the EU.

• To take the single biggest step so far in the creation of an EU superstate.

The Draft Constitution has been presented to the Council of Ministers and it will likely be concluded (however tortuously) by member state Governments and the resulting treaty will be put to referendum in the 26 Counties. This means that the people and government of the 26 counties have the opportunity both to influence the content of the Draft Constitution and, ultimately, to decide whether or not it should be accepted. Notwithstanding our scepticism about the whole notion of a European Constitution, Sinn Féin believes that it is our responsibility to influence the debate and to ensure that the 26 county Government uses its negotiating position to ensure that those anti-democratic elements currently contained in the Draft Constitution are excised. Set out below are examples of the minimum changes that Sinn Féin believes the Government should be demanding in the forthcoming negotiations.

Key provisions of the Draft Treaty

Relations between the Union and the Member States

Article I-5(1) states that the Union shall respect “national identities” and “regional and local selfgovernment”.

Significantly it makes no reference to national sovereignty or national self-government.

It says it shall respect “essential State functions” including ensuring the territorial integrity of the State, law and order and internal security.

This Article should be amended to include respect for national sovereignty and self-government. The Constitution should recognise that “the social and economic well-being of their people” are among “essential State functions”. This would emphasise the right of states to control their own economies, a right currently undermined by the EU.

Primacy of EU law

Article I-10 states that the Constitution and law adopted by the EU institutions “shall have primacy over the law of the Member States” in exercising competences conferred on the EU. This would firmly establish EU law as superior to national law. While the word ‘federal’, which appeared in earlier drafts of the document, has been removed, this in effect creates a federal state in which federal law, in more and more areas, over-rides the laws of member states.

We believe that this provision entails the diminution of basic democratic rights. Therefore in line with our with our basic principles, Sinn Féin opposes this Article and calls on the Irish IGC negotiators to have it struck from the Draft Treaty.

Single Legal Personality

Article I-6 states simply that “the Union shall have legal personality”. Despite its brevity, this is a hugely important Article. It creates the EU as a single legal entity for the first time. It should be noted that in the Convention on the Future of Europe Working Group on Single Legal Personality, the issue that loomed largest was the EU’s role on the wider international scene. The single legal personality makes the EU a subject of international law and thus “technically able to represent Europe, sign treaties, go to and be summoned to court and become a member of international organisations. The result would be greater clarity in relations with the rest of the world, increased effectiveness and legal certainty and more effective action”.

Taken together with the new roles of the European Council President, the EU Foreign Minister and the further expansion of common foreign, security and defence policy this is a key article in establishing the EU as a single state, aspiring to be a superpower on the world stage.

We firmly oppose Article I-6 and demand that the Irish Inter-Governmental Conference (IGC)negotiators ensure that it is removed from the Draft Treaty.

Common Foreign and Security Policy

The new EU Constitution will require Ireland to cede most or all of our remaining independence in foreign policy to the EU.

We have already noted that Article I-10 has established the primacy of EU law over member state law in its areas of competence. Article I-11 (4) establishes EU competence in the area of Common Foreign and Security Policy (CFSP), thus giving it that primacy.

The draft Constitution states at Article I-15 (1) and (2) that the Union shall have a Common Foreign and Security Policy that covers “All areas of foreign policy and questions relating to the Union’s security, including the progressive framing of a common defence policy, which might lead to a common defence”.

It goes on to insist that “member states shall actively and unreservedly support” the CFSP, “shall comply” (with it), and “shall refrain from action contrary to Union interests or likely to impair (CFSP) effectiveness”.

The Draft Constitution also requires the convergence of member state foreign policies.

Article I-39(5) severely curtails policy independence as it insists that states consult with the Council “before undertaking any action on the international scene or any commitment which could affect the Union’s interests”.

These provisions represent major incursions on Irish sovereignty in foreign and defence policy. We firmly oppose the diminution of sovereignty and democratic accountability in relation to foreign affairs entailed in these Articles. Irish IGC negotiators at minimum, must protect Irish exercise of sovereign independence in international affairs by securing an explicit statement that EU competence in foreign policy is a shared competence — that, like with development cooperation and humanitarian aid, the exercise of EU competence in foreign policy shall not result in Member States being prevented from exercising their competence in foreign policy. They must also ensure the retention and strengthening of the unanimity requirement in both spheres of CFSP, which is undermined by proposals in the draft Constitution.

Militarisation of the EU

Sinn Féin has long warned that the EU is becoming progressively militarised, and predicted that developments pointed towards the establishment of an EU army with both force projection capabilities and an internal security function. Some dismissed this as exaggeration. But the provisions in the draft Constitution confirm our prediction.

Article I-40(1) states that the EU shall frame a Common Defence Policy leading to a Common Defence.

It provides for the establishment of a common defence that can act outside the Union including to “strengthen international security” using member state capabilities.

Article III-205(1) allows that this could include the deployment of forces to third countries to support “counterterrorist” campaigns. It takes very little imagination to see the potential for significant problems - and that the doctrine of pre-emption that prompted the invasion of Iraq is hereby authorised.

Article I-40(2) states that EU defence policies shall not prejudice NATO states - and further, shall be compatible with NATO. However, the special rights and responsibilities of the militarily neutral member states are not explicitly acknowledged, and these states are not specifically exempt from Common Defence requirements.

Article I-40(3) directs that member states contribute forces to a Common Defence and improve their military capabilities. It also establishes a European Armaments Agency, the basis for a European military industrial complex. This is contrary to our belief that multilateral disarmament - and multilateral nuclear disarmament in particular - should be a central goal of both Ireland and the EU.

Article I-40(7) introduces a so-called solidarity clause. It directs that member states must come to the aid of another member when it is “the victim of [an unspecified type of] armed aggression” and that they shall work with NATO. However, this provision is conspicuously silent on what to do about the member states militarily occupied by other member states or candidate countries - such as Ireland, or Cyprus.

Article I-42 is another version of the solidarity clause, but providing for military deployment inside EU borders for the purposes of “prevention” of “terrorism”. What is meant by either of these terms remains dangerously unspecified.

We believe that it is the duty of Irish IGC negotiators to protect Irish independence in defence policy, and specifically the traditional policies of military neutrality and UN primacy, by at minimum securing a specific article explicitly recognising the rights and duties of neutral states within the Union and explicitly recognising the right of those states requiring a UN mandate for military operations. They must also insist that this be given the same weight of recognition as that accorded to the obligations of NATO states.

The Union’s Institutions

President of the European Council

The Draft Constitution proposes fundamental changes to EU institutions and further centralises power.

Article I-21(1) proposes the new post of permanent President of the European Council (with a renewable two and a half year term of office instead of six-month rotation between member states as at present).

This proposal sets aside the partnership model of the rotating presidency, which guaranteed each state a turn at the presidency, regardless of its size, and puts in place another key characteristic of a single state - a Head of State in all but name, the EU President. For example, Article I-21(2) states that the President will represent the EU “on issues concerning its common foreign and security policy”.

This is similar to foreign policy role of the US president. It is hard to avoid the conclusion that the presidential proposals are designed to suit the aspirations of large countries and to marginalise the influence of smaller countries such as Ireland.

The IGC negotiators should reject the proposal of a permanent president and defend current arrangements in relation to the selection and remit of the Presidency of the European Council.

The Commission

Article I-25(3) entails the loss of right of each State to appoint a voting Commissioner. The IGC negotiators should defend the current arrangements of the right of all states to nominate a voting Commissioner.

Article I-26 provides for the European Council to select the President of the Commission by qualified majority, subject to endorsement by the European Parliament. We believe that this involves a lost opportunity to democratise the structures of the EU.

Charter of Fundamental Rights

The production of a charter of fundamental rights is, in principle, a welcome development, as is any measure that maximises available and enforceable human rights. We are worried that it has not been included in the body of the Draft Constitution. Our concern is that its force may be weakened. We are also concerned that its exclusion from the body of the Draft Constitution means that it could still be rejected by the IGC, while the rest of the Constitution is accepted. Irish IGC negotiators need to ensure that this does not occur.

We find it ironic that in a document that involves huge expansions of the scope of the Union into affairs that were previously the remit of member states, when it comes to fundamental rights, the Constitution is extremely sensitive to national autonomy. It is stated repeatedly throughout the Charter that the protection of rights contained in it is to be “in accordance with national laws and practices”. Essential social rights for European workers - such as the right of collective bargaining and action, protection against unjustified dismissal, entitlement to social security benefits and social services - are all subject to this qualification. Similarly, Article II-35 circumscribes the right of access to preventive health care and the right to benefit from medical treatment to ‘conditions established by national laws and practices’. In reality, these provisions add nothing to the protection afforded to European workers, but are simply an exercise in paying lip service to these rights.

In relation to the future implementation of the charter, we are concerned that, given the reluctance of the European Court of justice to strike down EU legislation on human rights grounds to date, the Charter does not expressly state that European legislative measures that violate the Charter shall be void. This contrasts with the position under Article 15.4 of Bunreacht na hÉireann, which provides that any law which is in any respect repugnant to the Constitution of Ireland shall be invalid. Irish IGC negotiators should ensure that an equivalent statement should be included in the EU Constitution.

We also have reservations about the content of the Charter. For example, in Article II-36, the Charter states that ‘The Union recognises and respects access to services of general economic interest as provided for in national laws and practices’. We believe that this provision may have the potential to undermine the right to legitimate collective action for workers in services deemed to be of ‘general economic interest’, and should therefore be excised from the draft.

We are also concerned with Article II-16, which establishes the freedom to conduct a business. This article should be clarified. While we accept the right of a person to conduct a business, we are concerned that this article could allow a scenario where the rights of corporations supercede not just the rights of the individual but national ones also. We call on the Irish IGC negotiators to ensure that the economic and social rights of the citizen are paramount.

Article II-41.4, which states that “Every person may write to the institutions of the Union in one of the languages of the Constitution and must have an answer in the same language” is a very important provision, given that Irish is one of the Constitution’s languages (Article IV-9). In effect, it may give Irish speakers better rights in this regard vis a vis the European Union than are currently enjoyed vis a vis the Irish State. However, the Constitution still fails to make Irish an official language of the Union, despite ongoing campaigning by Irish speakers on this issue. We call on the Irish IGC negotiators to press for the inclusion of Irish to be included in the Constitution as an official language of the Union.

Defining Competences

In discussing competences, Article I-16 states that ‘The Union may take supporting, coordinating or complementary action’. Sinn Féin believes that the outline of what constitutes ‘areas of supporting, coordinating or complementary action’ is too vague and does not comply with the supposed objective of clarity and transparency in relation to the Constitution. A detailed definition of all Union competences (exclusive, shared and what were previously termed “complementary competences”) should be contained in the Constitution. In drawing up this definition, Irish IGC negotiators should strive to ensure that complementary action, or at least shared competence, should, in as many cases as possible - and particularly in non-economic spheres, take precedence over exclusive competences. For example, as we have already noted, there is an urgent need to maintain national control over foreign policy and defence.

Subsidiarity

Sinn Féin supports the principle of subsidiarity and, while challenging the Union’s claims to exclusive competence in many areas (see above), welcomes the commitment in Article I-9(3) that, ‘in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level’. However, we have concerns as to how this principle is to be enforced. In setting out the practicalities of member states challenging the Union’s opinion that it is in compliance with the principle of subsidiarity, Annex II(6) states that if at least one third of states put in a reasoned challenge, then the Commission must review its position. However, it goes on to state that after the review, the Commission may decide to maintain its proposal. Sinn Féin calls upon the Irish IGC negotiators to ensure that states are vested with meaningful sanctions that allow them to effectively challenge the Commission in cases where they believe the Commission is over-stepping its remit.

We also call for the principle of subsidiarity to be extended as far as possible to sub-national levels, and for an expansion of the involvement of local development groups in the management of EU programmes. Real substance needs to be given to the commitment found within the regulations governing rural development programmes, for example, to ‘bottom up’ development. We are of the firm view that wherever possible, decisions should be taken at the lowest possible level and with the greatest amount of decentralised control. We call on the Irish negotiators to ensure that it is clearly stated that the principle of subsidiarity should include decision-making powers at regional and local levels as well as national.

National Parliaments

Sinn Féin welcomes proposals contained in Annex I for the improvement of information coming from the Union to national parliaments. However, we note with concern that, with the exception outlined above, no mention is made of what parliaments can do with the information they receive. Indeed, while the working group on this issue talked vaguely of scrutiny, all mention of the word has been excised in the Draft Constitution. We call on the Irish IGC negotiators to ensure that national parliaments are given clear and meaningful sanctions in relation to Commission proposals.

We also note that the working group’s observation that ‘many of the measures relating to scrutiny on the national level could also, within each Member State, apply to the substate level’ has not been taken up in the Draft Constitution. We believe that inclusion of such a clause would be of considerable benefit to a 6 county assembly, and therefore call upon Irish negotiators to press for such an inclusion.

Freedom, Security and Justice

The pace at which the EU has developed a competence in criminal law over the past decade is staggering. The draft Constitution dramatically increases the European Union’s role in this highly sensitive area.

In their final report, the working group in this area stated “there are a number of areas such as cross border crime, asylum policy or control of the unions external borders which cannot be dealt with effectively by States acting on their own, nor is defence against the new terrorism threats compatible with autonomous action at national level”. This basic assumption underlines all the arguments used by those who advocate or support integration, or mutual recognition in matters of criminal justice.

Practical examples of the need for such integration are, however, scarce on the ground. While some hope the harmonisation of criminal procedure could result in a levelling up of human rights protection, realistically, a process which is dominated by a Council of Home Affairs and Justice Ministers - with only limited parliamentary scrutiny - is much more likely to result in an erosion of rights.

Our concern with the emerging European criminal justice system is that it will not be a synthesis of the best procedures and protections that currently exist among the member states but will be a new system with increased powers transferred to prosecuting authorities at the expense of individual human rights.

For example, Article III-166(2a) envisages a European Framework Law which would govern the mutual admissibility of evidence between member states. Such a proposal, would most likely result in evidence that is currently inadmissible in the courts of many member states, being deemed admissible, if obtained in another member state. We call on the Irish IGC negotiators to ensure that no provisions within the remit of freedom, security and justice will lead to an erosion of rights currently enjoyed by Irish citizens.

Again, the Constitution underminest Constitution. Article I-3(2) envisages ‘a single market where competition is free and undistorted’ to describe the EU. This contradicts Article I-3(3), which calls for a social market economy. An unhindered capitalist market-driven society can neither be described as a social market, nor can it be something desirable to anyone with an interest in equality. We oppose the idea of competition being completely free and unhindered and believe that states should be allowed to exercise democratic control over their economies.

We are concerned that the free market model will emerge dominant from this contradiction, and that economic priorities will continue to outrank social ones. We call on the Irish IGC negotiators to ensure a strengthening of the pre-eminent status of the social market.

In relation to state aid to industries, the provisions in Articles III-53 and 54 do not go beyond the provisions of extant EU treaties. They need to be expanded substantiaits the EU to working for the eradication of poverty in the wider world. This is positive in and of itself but it exposes the fact that such an objective is not listed in Article I-3 as an internal objective of the Union. This is deeply objectionable and brings into question how serious the Union is about tackling poverty within its own borders.

We call on the Irish IGC negotiators to ensure that the elimination of poverty within the EU becomes one of the key objectives of the Union. We also call on the Irish negotiators to ensure that Article I- 3(3) includes a statement guaranteeing citizens a right to access decent education, health care and housing.

Conclusion

• Sinn Féin does not accept the argument that there should be an EU Constitution because we are opposed to the creation of an EU superstate.

• We agree that the simplification and consolidation of existing EU Treaties is necessary but we are opposed to such a process being used to diminish national sovereignty and increase the power of the EU as the Draft does.

• The Draft Constitution would establish the EU as a single State legally and politically and would advance the project to turn the EU into a world power.

• It will enhance the power of the larger states.

• One of the central terms of reference in the Laeken Declaration was that the Convention on the Future of Europe redress the democratic deficit. We conclude that the Convention’s draft Constitution has failed in this regard.