Irish Supreme Court Judgment exposes EU Institutional Failure to Comply with Irish Sovereignty and Lisbon Treaty Terms
The Supreme Court, Record No: 2009/1042/JR between: Harry Rea, Applicant and Ireland and the Attorney General and Maurice Coughlan, the Referendum Returning Officer, Respondents.
Following the judgement of the Irish Supreme Court some time has been spent examining the consequences of the Judgement and how it impacts the European Union’s relationship with Irish People. This has involved the Applicant examining the activities of the EU Institutions since the Lisbon Treaty came into force.
The originating argument made in the High Court was that the Irish Government, in its negotiations over the Lisbon Treaty, had handed over the responsibility for protecting Fundamental Rights that the Irish People were particularly concerned about losing to a collection of 27 member states of the EU by way of a Foreign Policy Treaty (the “Guarantees” Decision).
It was contended that this was an alienation of duty by the State and was impermissible under Constitutional Law unless it had been directly approved by a majority of the People. If the Courts agreed with this proposition then the second Lisbon referendum should be declared null and void as the 28th Amendment Bill had not asked the people to approve the “Lisbon Guarantees”. The High Court refused leave for Judicial Review; this refusal was the basis for the appeal in the Supreme Court.
In the six years that passed while Mr Rea waited for a hearing, the “Guarantees” Decision on the concerns of the Irish People on the Treaty of Lisbon was converted into a Protocol.
Europe told the Irish People that by so doing the “Guarantees” became “justiciable” or capable of being decided on legal principles in the European Court of Justice (ECJ).
This in effect condensed the original argument down to one vital question. If the ECJ was the court to decide on issues that might arise between EU Law and Irish Fundamental Rights protected by the Constitution of Ireland but “Guaranteed” by the Protocol, then the ECJ would, in the process, be interpreting the Irish Constitution. This would mean that the power and duty of the Supreme Court to interpret the articles of the Constitution protected by the Protocol had been ceded from the Supreme Court to the ECJ.
The Supreme Court was faced with a choice between two possibilities, either the second Lisbon Referendum had bought about an alienation of Sovereignty that had not been directly approved by the People and therefore must be struck down, as was Mr Rea’s contention, or the Court’s power and duty was undisturbed and must be respected by the European Union and ECJ.
The Supreme Court decided to assert its own authority, and declared in its Judgement delivered on 9th May 2016:
“The Court is satisfied that it is for the Supreme Court of Ireland to interpret the Constitution of Ireland.
The Court understands that the power and duty of the Supreme Court of Ireland to interpret the Constitution of Ireland would be respected by institutions of the European Union, including the European Court of Justice”.
This simple declaration is in fact a great victory for the Sovereignty of the Irish People and the Constitution that they own. During the course of the appeal hearing on April 5th the Court had tried for an hour to get the barrister representing Ireland (The State) and the Attorney General to say these words and assert Irish sovereignty but instead he argued that the interpretation of the Irish Constitution was now in the control of the ECJ. The Supreme Court’s decision has unequivocally corrected the State’s erroneous opinion and position.
This declaration has a deep and far reaching effect. It goes beyond the ECJ into every EU institution.
This whole issue was sparked off in the first place by the Charter of Fundamental Rights of the European Union being given legal effect by the Treaty of Lisbon when, in effect, it would actually have unquestionably weakened our existing Fundamental Rights already established under the Irish Constitution. Other people and Governments across Europe rightly feared that legislation and rulings under the Charter would supersede and interfere with national and constitutional fundamental rights. Britain, Poland and Ireland all obtained Protocols to Lisbon in an attempt to protect their own laws but this Supreme Court decision has ensured that the Irish People will remain in control of their own destiny as a Sovereign People in a Nation among Nations.
The fears of the European nations were confirmed in the Melloni and Ministro Fiscal Case decision by the ECJ. The European Commission revealed its ‘supremacy agenda’ in its report on this case. It had been decided by the European Court of Justice that the European Union Charter of Fundamental Rights supersedes national constitutions as does all other EU law. Constitutional rights at national level must therefore be ignored if they should clash with the European Courts interpretation of the same rights. A member State cannot rely on a provision in its national constitution that purports to provide a higher level of protection of a fundamental right than in the Charter as a reason for not applying a clear provision in an EU law. This is stated in the commission’s annual report for 2013.
Prior to the referendum in 2009, the office of the Minister for Foreign Affairs, Michael Martin had advised the nation through a letter to a citizen who had expressed concern as follows:
“I note your concern that Ireland will lose our control over right to life and family law issues, but these areas remain in the competence of the Member States and thus it is clear that nothing in EU law can or will affect the protection of the unborn and the family in the Irish Constitution. This is reaffirmed in the legal guarantee on the right to life, family and education which the Government secured at the European Council in June 2009”.
This Judgement by the Supreme Court could not have been timelier. The European Commission is one of the institutions of the European Union referred to by the Supreme Court. In 2013 it produced a Report on the Charter of Fundamental Rights of the European Union. A search through the report will reveal that the Commission has been very busy developing areas of the Charter, with a view to introducing legislation in many instances.
A search of the headings shows that many of the topics discussed, if enacted, would directly affect the freedoms of Irish people which were specifically mentioned in the Irish Protocol on the “Guarantees” to the Lisbon Treaty; Religion, Right to Life, Education, and the Family.
At this point the Irish “Guarantees” had to be honoured to arrest the activities of a delinquent European Commission. These activities are clearly well outside the stated competences of the European Union. The failure of the European Commission to have obtained preliminary advice in a full public hearing before the Irish People’s Supreme Court confirms the invalidity of their actions when they should have been properly informed by the Irish Court that they had in fact committed themselves to not getting involved in matters relating to Religion, Right to Life, Education, and the Family.
The report mentions that the Commission sent recommendations to the European Parliament on Matrimonial Property Regimes. The European Parliament in turn produced its own resolutions on this matter.
Matrimonial property, in particular the Family Home, has been the subject of several Supreme Court of Ireland judgements in the not too distant past. Attempts by the Oireachtas to introduce legislation regulating the ownership of the Family Home have been firmly struck down by the Court where it has reaffirmed that it is beyond the power of the State to interfere in the private affairs of the institution of the Family founded on Marriage.
This is how our Constitution protects the Family. The Constitution confers powers to the Government, but these are limited to protecting the Family unit and its members and the Government cannot involve itself in the private affairs of the Family founded on Marriage.
The People are free in their Families; the State is controlled by the People and is strictly limited to the powers that the People have decided to give it. The State’s actions in the Lisbon Treaty if it had gone unchecked would have circumvented the Irish people’s authority over the State.
The European Commission and the European Parliament are a long way down the road to producing legislation on the issue of Matrimonial Property Regimes and other matters connected to Family affairs. Under the terms of the Lisbon Treaty with Ireland they have to comply with the Irish Protocol. This means that from the very first day of developing policy on the Charter of Fundamental Rights they had to check every item on the agenda against that Protocol and build it into every report that could impact in any way on the Irish Rights they have “Guaranteed” to protect.
To have knowledge of what the Articles of the Irish Constitution mean and how the policy areas they were developing might impact on the protected rights, every matter would have to be referred to the Supreme Court of Ireland for its views. Plainly this has never happened; there is no process to do so. The only proper proposition for a route would have been to ask the President of Ireland to refer matters to the Irish Supreme Court.
An examination of the European Commission report on the Charter of Fundamental Rights and the European Parliament reports and resolutions reveals that the Irish Protocol – the “Guarantees” has never been mentioned anywhere.
This is plain evidence that the institutions involved have indeed broken the Treaty of Lisbon with Ireland. This boils down to one simple fact; if the Irish “Guarantees” are not taken into account and respected by the EU and by each and every one of its Institutions then there can be no Treaty of Lisbon. No “Guarantees” – no Treaty of Lisbon.
Further to this, the European Court of Justice, as an institution of the EU itself, cannot now remedy the situation; it cannot be a judge in its own cause as any ruling it would make would directly affect that court and would be impermissible as it would contravene the fundamental principles of Justice.
In fact, when the nations of Europe signed and ratified the Irish Protocol on the “Irish Guarantees” they had no knowledge of what they were committing to because they had not asked the only body that had the power to explain it to them – the Supreme Court of Ireland.
The decision of the Irish Supreme Court has now put an end to that confusion and raised the drawbridge against all foreign interference with our Nation and our Peoples Sovereignty.
Today the Irish people can stand tall; despite the failure of our State to honour the “Guarantees” that they promoted to secure their second “Yes” vote in the Lisbon Treaty we are in a position to once again declare and assert the unique Sovereignty of the Irish People to the world.
The Applicant intends to continue to raise matters on the betrayal of the Irish People by the Irish representatives with the European Institutions concerned.