Treaty Referendum: 31 May 2012

BlaasForRafa wrote: »

I'm not a lawyer so I could be getting this completely wrong but this provision looks like it gives the government of the day carte blanche to do whatever it likes and justify it as being necessary to the performance of the stability pact.

For example, it would seem that a government could get rid of child benefit payments and justify it as being necessary despite the provisions in the constitution relating to the child and the family etc. Now thats an extreme and broad brush example and no government that wished to get re-elected would do it but it would seem that its possible under this provision.

If this amendment were time limited (say 8-10 years) or subject to reconfirmation with another referendum in 8-10 years than it might seem less powerful than it is.

On another point entirely, if there was a significant debt writedown (not the payment delay thats currently being proposed) then I might be more inclined to vote yes than I am now. I realise thats a mercenary viewpoint but so what, I'm not ashamed to admit I'm open to inducement.

Actually, that illustrates quite well the kind of problems I have with phrases like "trumps our constitution", because that's a similarly over-broad reading.

If a government decided to do away with child benefit, then, first and foremost, there's nothing in the Constitution to stop them doing so.

Second, assuming that there were something in the Constitution which would otherwise prevent them, they can't merely wave at this and claim it as protective. In the inevitable court challenge, the government would be forced to show that the abolition of child benefit was a specific outcome of treaty implementation - which, unless child benefit is specifically mentioned in the treaty, they couldn't possibly do.

At most, the government could show that compliance with the treaty meant that government expenditure compared to revenue had to remain within a certain envelope, and that remaining within this envelope - given the government's other spending and taxation choices - required a level of savings that could be financed by abolishing child benefit.

It should be immediately obvious, I hope, that the abolition of child benefit under those circumstances is in fact the outcome of the government's other spending and taxation choices, and is one possible way of meeting the targets, and therefore is not in any way specifically "necessitated by the obligations of the State under that treaty". Therefore, unless all the other spending and taxation choices had better constitutional protection than child benefit, there could be no obligation on the state to engage in something constitutionally repugnant to meet the targets in the treaty.

The exemption from constitutional challenge for treaty-derived law is not a carte blanche, but a very narrow exemption only for what can be shown to be a direct obligation of the treaty in question.

cordially,
Scofflaw

It's been a long time since I've had to read legal prose but I would translate quote into clearer English thus:


The state has permission to give formal consent to the treaty known as the Fiscal Treaty. Nothing in the constitution can be used to invalidate any measure taken by the state as a result of the said treaty or any measures undertaken by organisations active under the patronage of the state in regards to the treath.


That's my reading of it but I'm open to correction.

Dirk Gently wrote: »

that wouldnt be as bad as my reading of it as it at least leaves a degree of accountability. It looks to me like carte blanche is being given to europe, over the heads of our own government.

Article 7 in particular is worrying

ARTICLE 7
While fully respecting the procedural requirements of the Treaties on which the European Union is founded, the Contracting Parties whose currency is the euro commit to supporting the proposals or recommendations submitted by the European Commission where it considers that a Member State of the European Union whose currency is the euro is in breach of the deficit criterion in the framework of an excessive deficit procedure. This obligation shall not apply where it is established among the Contracting Parties whose currency is the euro that a qualified majority of them, calculated by analogy with the relevant provisions of the Treaties on which the European Union is founded, without taking into account the position of the Contracting Party concerned, is opposed to the decision proposed or recommended.

Actually, that is a good point and a genuine concern. Coming back to BlaasForRafa's idea about abolishing child benefit - that's not something which is feasible under the ordinary operation of the Treaty, but is feasible under this clause. In other words, in the deficit mechanism it is possible for the Commission to make "proposals or recommendations" which we are obliged to support unless there's a blocking majority against them.

Such "proposals or recommendations" would presumably then be considered to be obligations in themselves, and therefore exempt from constitutional challenge.

cordially,
Scofflaw

Dirk Gently wrote: »

We're really being asked to take a gamble on an unknown and hope it's preferable to not being excluded from future EU bailouts.

That's perhaps true, but then the alternative isn't well determined, either. That is, your concern rests on the unpredictably of the usage of the Treaty by the European government -- however, can one really suggest that the Irish government is any more predictable and/or "better"?

Obviously the Irish government is more accountable in terms of relying more directly on the electorate for their position, but historical evidence suggest that this doesn't ensure that ultimately disastrous economic policies are not followed. The evidence here is the current crisis which was caused in a large way by the low-tax high-spend policies promoted by the 3 major parties. You're hinting that we can't trust the commission -- but should those fears be placed closer to home, too?

One thing I like about the EU (from my limited knowledge) is its "coldness". This treaty isn't here to help some parliamentarians keep their seats, or to shmoozy a few special interests. It is here because running large deficits has a demonstrably negative effect on the long term stability of the Eurozone, and something is needed to safeguard that. If the commission makes fiscal recommendations it probably won't have ideological factors (such as an opposition to child welfare, for instance) in mind, but will only be interested in satisfying the cold mathematical demands of a stable economic policy.

Dirk Gently wrote: »

In fairness, the EU is a lobbyists wet dream.

No more so than any other centre of power, I think. Somewhat less in quite a lot of ways, because the legislation gets voted on by 27 countries, which means quite a lot of national level lobbying is vital for developments at the European level.

Dirk Gently wrote: »

One of the things I'm worried about is that it's also not in fact immune from political opportunism either and the mechanism I highlighted earlier could well be used to forward an agenda at our expense, for example an instruction to us to raise corporation tax would go down well in a lot of EU countries.

But would be a terrible precedent for the other countries not to block. The Commission, precisely because it's not an elected body, but also because it operates by consensus, is less likely to start playing politics, and will be well aware of the limits to its effective mandate. Imposing a deeply nationally unpopular measure like that would do the Commission immense damage.

Dirk Gently wrote: »

Both of those concerns pale though when I think about the broader point, we are in effect giving up on democracy and looking to unaccountable technocrats to rule us. Representative democracy has failed in Ireland, I'd rather try to fix it though than abandon it. Short term perhaps, this treaty might be a good thing, medium to long term though I'd be looking to withdraw as opposed to getting further sucked in.

The question I need to ask is, do I support a temporary suspension of democracy and or accountability for the greater good of the nation, and will it be a temporary transfer or a permanent one.

Eh, and that's basically tosh. The clauses on excessive deficit procedures is only operative when there's an excessive deficit, and applies solely to measures to get us out of the deficit.

And while we're currently in an excessive deficit, we're also exempt from the application of these rules until three years after the end of our current program.

cordially,
Scofflaw

later12 wrote: »

Really? You don't think it's possible that the particularly tight deficit rules of questionable economic inflexibility and the nature of the correction mechanism dictated by the EU Commission could be - even in part - a sop dem Deustchen Volke, as Merkel eyes her fate?

No doubt - but I was discussing what recommendations the Commission would give when dealing with a country under the terms of the treaty, rather than the creation of the treaty itself.

Dirk Gently wrote: »

which is defined by the commission

Who would you prefer it defined by? The Commission's procedures for determining excessive deficit are well established and transparent, and have been in place since Maastricht. While they've been flouted, I don't recall them ever having been applied unfairly.

Dirk Gently wrote: »

measures which are also defined by the commission

Again, not really. The article being cited applies to a fairly specific set of circumstances - a breach of the excessive deficit criterion within the excessive deficit procedure. Under most circumstances what applies is the national plan, either ad hoc or as part of the national "correction mechanism", as per Articles 3.3 and 5.1:

2. The rules mentioned under paragraph 1 shall take effect in the national law of the Contracting Parties at the latest one year after the entry into force of this Treaty through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes. The Contracting Parties shall put in place at national level the correction mechanism mentioned in paragraph 1.e) on the basis of common principles to be proposed by the European Commission, concerning in particular the nature, the size and the time-frame of the corrective action to be undertaken, also in the case of exceptional circumstances, and the role and independence of the institutions responsible at national level for monitoring the observance of the rules. This mechanism shall fully respect the prerogatives of national Parliaments.

1. The Contracting Parties that are subject to an excessive deficit procedure under the European Union Treaties shall put in place a budgetary and economic partnership programme including a detailed description of the structural reforms which must be put in place and implemented to ensure an effective and durable correction of their excessive deficits. The content and format of these programmes shall be defined in European Union law. Their submission to the European Commission and the Council for endorsement and their monitoring will take place within the context of the existing surveillance procedures of the Stability and Growth Pact.

Dirk Gently wrote: »

what happens if /when we are in excessive deficit as a result of following the fiscal treaty? Do we get a pass?

Apologies - not sure what this refers to?

cordially,
Scofflaw