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Why the Irish voted yes to Nice in 2002

In response to several enquiries from outside Ireland for a summary account of why Irish voters voted Yes last Saturday to exactly the same Nice Treaty as they rejected last year, for your information the principal reasons as my colleagues and I see them.

There were two major differences between Ireland's Nice Two referendum and Nice One.

(1) In Nice Two, in contrast to Nice One, there was no public money behind the No-side arguments, because of the removal of this function from the neutral statutory Referendum Commission last December. This body had been given large sums of public money in Nice One to put the Yes-side and No-side cases. That particularly helped the No-side,as they are the poorer of the two. The fact that there was substantial public money behind the Yes-side and No-side arguments in Nice One also meant that private interests did not bother advertising on that occasion. In Nice Two by contrast,the removal of its Yes/No-argument function from the Referendum Commission cleared a free field for private advertising. This was in a ratio of approximately 20 to 1 in favour of the Yes. Thus, for example, the Yes-side posters were mostly put up by private companies that were paid so many euros per poster to do so, whereas the No-side posters were put up by volunteers.

(2) The change in the referendum question: The question the Irish people were asked to vote on in Nice Two was essentially a trick question. There was an extra clause in the contitutional amendment in Nice Two compared with Nice One. This extra clause said that Ireland could not join an EU defence pact without holding a referendum to change its Constitution.This had nothing to do with the Treaty of Nice and was quite irrelevant to the Treaty's ratification. It was inserted as a third clause in addition to the the two clauses that were needed to ratify Nice, and all three had to be voted on as one. This extra clause, if it were to be put to the people at all, should properly have been put as a separate referendum proposition, on which people could vote separately. Instead people voted last Saturday on a three-clause amendment which contained two different joined propositions, to which only one answer could be given, a Yes or a No.

This trick question in Nice Two meant also that the Referendum Commission's other main function, to inform citizens what the referendum was about - for which it was given double the budget of last year (viz. 4.5 million euros) - was inherently confusing, and was biased significantly towards the Yes side. In the event, the Referendum Commission, which was the principal aid to the No side in Nice One, was objectively of significant help to the Yes-side in Nice Two.

These two changes to the basic referendum rules enabled the Irish Government and its allies successfully to impose their campaign agenda in Nice Two. They succeeded in representing Nice Two as a vote for or against "Jobs and Growth," "EU Enlargement," or "Putting Neutrality into the Irish Constitution" - which were largely irrelevant to the real issue. Most Yes-side voters voted in effect for these desirable things, thinking that they were voting on the Treaty of Nice, but without being aware of the actual content of the treaty, which had little or nothing to do with these matters.

The Yes-side's success in imposing its agenda in the last two weeks of the referendum campaign, deriving mainly from the above two factors, was helped by appeals for a Yes vote from the 10 Prime Ministers of the Applicant countries, by the likes of Vaclav Havel and Lech Walesa making similar appeals, by the ambassadors of the Applicant coutries writing a Yes-side letter to the Irish Times, by the Czech and Polish ambassadors actively campaigning for a Yes, by the Irish Catholic Hierarchy positively supporting the Yes side, which they had never done in previous EU-related referendums, and by a number of other factors that variously affected the Yes-side and No-side votes. But in our judgement they were of small significance compared to the two factors mentioned.

The National Platform is of the view that were it not for the above two changes in Nice Two as compared to Nice One, the No side could have won the 19 October referendum. As it was, the 37% No vote - much the same as last year's No - was very creditable in the circumstances. That vote remains as a strong block to oppose the EU State Constitutional Treaty that is already being prepared for 2004/2005.

Yours faithfully,

Anthony Coughlan Secretary

PS. Below is an information note on the Nice Two constitutional amendment which has been prepared in response to various queries from abroad. Please feel free to use it or adapt it as you see fit, without need of acknowledgement, if you or your organisation should receive similar queries.

IRELAND'S CONSTITUTIONAL AMENDMENT TO RATIFY THE TREATY OF NICE: an information note

22 October 2002

Irish referendums are forms of direct legislation, like in Switzerland and various other countries, and many states of the USA. The citizens of the Republic of Ireland are legislating to amend the Constitution of their State, which they originally adopted in 1937 and "gave to themselves" by referendum, to use the words of the Constitution's preamble.

Irish referendums are therefore constitutionally different from referendums in the United Kingdom,for example, which are advisory in character, for sovereignty in the UK is regarded as resting with the Crown in Parliament, not with the people.

The Irish Parliament(Dáil) puts a Bill before the people, which they then legislate on. In EU-related referendums Irish citizens are legislating to hand over sovereignty - i.e. legislative,executive and judicial power - to the EU institutions in the areas covered by the EU Treaty in question. This only the people themselves can do, as they are the repositories of sovereignty under the Irish Constitution. This important principle that EU treaties entailing the surrender of sovereignty must be ratified by referendum in the Republic,rather than by parliamentary majority vote, was established by the Irish Supreme Court in the 1987 Crotty case.

So on Saturday last, 19 October, the Republic's citizens were legislating on the 26th Amendment of the Constitution Bill, and the question on the ballot paper was: Do you approve of the 26th Amendment of the Constitution Bill? Citizens vote Yes or No to that. If they vote Yes, the Bill becomes an Act when signed by the President, and the Constitution is consequently amended - in this case permitting the Irish State to ratify the Treaty of Nice.

In every Irish polling booth there was legally required to be a prominent notice on the wall stating what the 26th Amendment to the Constitution Bill says, so that people will know what their vote means. The campaign leading up to the referendum should also have served to make them well aware of that.

The text of the constitutional amendment set out in the Bill is given below. One should note that in the Nice Treaty Re-run referendum, in contrast to the Nice One referendum last year, there are two separate joined propositions to which only one answer was permitted. The third clause has no legal connection with the first two, so it was a trick question to a degree. The Nice Two amendment was different in that respect from all previous Irish constitutional amendments.

The third clause dealing with a referendum on a hypothetical EU defence pact - which had nothing to do with ratifying the Treaty of Nice - should properly have been put as a separate constitutional amendment from the first two clauses. But they were lumped together as two different joined propositions, to which only one answer could be given. This was part of the Irish Government's trickery in seeking to overturn last year's democratic rejection of the Nice Treaty and to get the Treaty through this time.

Below is the constitutional amendment set out in the 26th Amendment of the Constitution Bill. It consists of three clauses that constitute one amendment. The three clauses add three subsections to Article 29 of the Constitution:-

- To insert in the Constitution a proposed new subsection: Article 29.4.7:

"The State may ratify the Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts signed at Nice on the 26th day of February, 2001."

(This has the effect of ratifying the Treaty of Nice)

- To insert in the Constitution a proposed new subsection:Article 29.4.8

"The State may exercise the options or discretions provided by or under Articles 1.6, 1.9, 1.11, 1.12, 1.13 and 2.1 of the Treaty referred to in subsection 7 of this section but any such exercise shall be subject to the prior approval of both houses of the Oireachtas."

(This relates to the enhanced co-operation provisions of the Treaty.)

- To insert in the Constitution a proposed new subsection:29.4.9

"The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the Treaty referred to in subsection 7 of this section where that common defence would include the State."

This involves a constitutional prohibition on Ireland joining an EU common defence, although it does not prevent the other EU states forming such a defence pact among themselves if they should wish to do so.

_______________________

The National Platform,Ireland, is affiliated to The European Alliance of EU-critical Movements(TEAM): Secretary-General Henrik Dahlsson; TEAM Secretariat: The European Parliament, Rue Wiertz 2H 246, 1047 Brussels, BELGIUM; E-mail: hdahlsson@europarl.eu.int;Tel: 00 32 2 284 65 67; Fax: 00 32 2 284 91 44; Website: www.teameurope.info

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