A simple formula could protect our rights from intrusion by EU

TO JUDGE by recent newspaper reports, the Government has scored a remarkable diplomatic triumph. They have revived hopes for a European constitution. Where there was doubt, they seem to have brought faith.

A few months ago the constitution project was facing years in cold storage. The Irish presidency was adopting the 'expect nothing and you won't be disappointed' strategy and playing down any prospects of agreement.

Bertie Ahern and Brian Cowen deserve credit. Probably no other Irish Government, perhaps no other European one, would be as likely to secure a deal. But they've left the Irish electorate with a problem. The Nice Treaty, as we all remember, was a rather awkward affair. It had to go before the people twice. And there was widespread anger at the Government for not explaining the issues.

Quite possibly, the issues won't be explained too well before we vote on the new EU constitution either. I might be wrong, but past experience suggests that Irish Governments do not like getting into the nitty-gritty of European treaties before, during or after referendum campaigns. People start expressing fears on all sides and the whole situation descends into confusion. So many issues are decided at once and it becomes impossible to reflect on the practical implications of any of them.

The complicating factor will be national pride. The Government will remind us of all that diplomatic effort negotiating a workable agreement, trying to secure Ireland's interests and restoring Ireland's reputation as an EU-friendly nation and ask us how we can possibly reject it.

This argument will take some beating. The Nice saga showed us willing to make growling noises about European integration, but afraid to incur the serious displeasure of other European governments. Nobody wants to be a killjoy. The EU has brought obvious benefits if the same people who brought us those benefits believe we should push ahead with further integration, who are we to say no? The problem is, we don't know why we should say yes. Okay, the draft constitution revises voting arrangements to facilitate agreement in the new, enlarged EU. But even that proposal has its critics, who say larger states will dominate the business of the union.

The 465 articles of the draft constitution are ambitious. Article 2 lines up the fundamental values of the EU (human dignity, freedom, equality and democracy), as well as principles underpinning European society pluralism, tolerance, justice, solidarity and anti-discrimination. Things get a bit more complicated around Article 10. This declares that the constitution and the law of the EU are superior to the laws of the member states and that the EU as a separate legal person can negotiate treaties on behalf of member countries. Article 15 speaks of the progressive definition of a common defence policy. The constitution also enlarges on the number of areas to be decided by majority voting: individual countries lose the veto on proposals they may not like.

Whether all this is good or bad depends on your view of the EU's potential. "The importance of the European Union," says former Taoiseach John Bruton, "derives from the fact that there are forces loose in the world that nation states are just too weak to master on their own. These forces include cross-border crimes, cross-border migration and the cross-border spread of disease and pollution."

Some of this thinking was evident recently when the Taoiseach hinted that Ireland might give up veto rights in some areas of criminal law and judicial co-operation.

And these are exciting times. Turkey wants to join the EU, which opens all sorts of possibilities. A prosperous, liberal democratic Muslim country at the heart of Europe could be a beacon for the Middle East. But do we need a new constitution for this?

Some analysts worry about the draft constitution's charter of fundamental rights which claims to protect citizens against possible breaches of their human rights in situations involving EU law. Up to now, disputes involving European law were resolved in member states, with assistance from the European Court of Justice on disputed points. Now the European Court of Justice in Strasbourg will be the final court of appeal. For those who can afford it, that is. In Ireland, we have always valued the readiness of our courts to hear the 'small man'. Access to law could be expensive, but at least it was local. No longer.

What the law says may be about to change, too. The Irish Constitution protects fundamental rights in unambiguous language: "Inalienable and imprescriptible rights, antecedent and superior to all positive law." The new charter of fundamental rights, on the other hand, allows limits on our rights "in pursuit of the objectives of general interest recognised by the union."

EU funding for embryo research provides a useful example of how things might pan out in practice. The Irish constitution probably doesn't allow such research. But suppose a company wished to challenge this under some aspect of EU law. How might the European Court of Justice decide it? They would start by observing that fundamental rights may be limited by "objectives of general interest". Then they would note the objective of embryo research according to the EU Competitiveness (Internal Market, Industry and Research) Council is "to foster the competitiveness of Europe's biotechnology industry by exploiting the wealth of biological data produced by genomics and advances in biotechnology". The issue might turn on whether the embryo is protected by the protocol which currently excludes Article 40.3.3. of the Irish constitution from the impact of EU law.

Advocates of homosexual marriage in Ireland may see the charter as a means of securing certain rights without a debate taking place. The Irish Constitution's linkage of marriage with the family is probably a sound basis on which to defend the various privileges conferred on heterosexual marriage by the state (eg, adoption, pension and succession rights).

But Article II-9 of the charter guarantees the right to marry "in accordance with the national laws governing the exercise of these rights".

Clearly, this wouldn't oblige Ireland to change its marriage law. But what if a same-sex couple, validly 'married' in accordance with the laws of another member state and now working here, demanded the same rights as a heterosexual married couple? The issue would not be decided by the Irish courts, but by the European Court of Justice. And the decision would not be based on the Irish constitution, but on part II of the new European constitution, ie the charter of fundamental rights.

These are just some of the issues which could drive a referendum campaign off track and change the Government's triumph to embarrassment.

Preemption may be the best strategy: a protocol to the treaty would do the trick. Such a protocol would reserve to the Irish courts consideration of issues under the fundamental rights clauses, Articles 40-44, of our constitution. Could Bertie and Brian negotiate for this? If not, they have other options.

Instead of amending Article 29.4.10° to read that "no provision of this constitution" would invalidate new EU laws, the amendment might provide that "no provision of Articles 1 to 39 inclusive" would invalidate EU laws.

This formula would allow Irish courts to protect fundamental rights in line with our constitution without significantly affecting the uniformity of EU legislation.

At any rate, it may be better than holding two referenda.