BERTIE AHERN AND THE GREEN BREXIT

BERTIE AHERN AND THE GREEN BREXIT

Reading and listening to Irish coverage of Brexit, one could be forgiven for denoting a hint of frustration and exasperation on the part of the Irish authorities and media. Perfidious Albion has been at it again and has, once more, landed us all in the soup. Of course, pure green Erin’s relationship with perfidious Albion has always been a difficult and tricky one, but on this occasion at least does Ireland not bear some responsibility for the Brexit mess?

Brexit was much more than just the expression of a desire by 52% of the people of the United Kingdom to leave the European Union. Should Britain trigger the “so-called” Article 50 procedure under the Treaty of Lisbon it will set in motion a process which will re-calibrate the entire post-World War II settlement which has done so much to maintain peace throughout Europe and indeed much of the rest of the world. Brexit will profoundly affect the existing bilateral political, legal and economic commitments which govern relations at present between the United Kingdom, Ireland, the other Member States of the European Union and the European institutions. Although the outcome of the referendum held in the United Kingdom on 23rd June 2016 was only advisory in nature, the British Prime Minister, Mrs Theresa May, has made it clear that the principles of governance which apply in a modern democracy require the British Government and Parliament to take the necessary political and legal steps to give effect to the will of the majority as expressed in the referendum. The dispute currently before the Courts merely concerns the best and most appropriate way to achieve Mrs May and Parliament’s shared joint aim by applying the rules of Britain's unwritten constitution and by negotiating around the obstacles presented by Britain’s complex political conventions and traditions. The Crown contends that Her Majesty’s Government is entitled to trigger the Article 50 procedure acting on its own authority by invoking the Royal Prerogative. Counsel for the Government argues that Her Majesty’s Government and its Ministers may trigger Article 50 and undertake the negotiations required to take the United Kingdom out of the European Union without any prior reference to Parliament. The proceedings before the British Courts at present are therefore concerned to a great extent with British constitutional issues and British legal procedures. However legal arguments and judgments relating to Brexit also inevitably reflect on the European Union, the Union’s methods of doing business and on the relations currently prevailing between the Union's Member States. This proposition is rendered even more relevant if the actual state and well-being of the European Union is examined or subjected to scrutiny under a sharp political or economic prism. From a legal point of view, the British Courts must consider, directly or indirectly, whether the European Union is still, or ever was, a lawfully established union of democratic sovereign States, governed through the implementation of the provisions of binding international treaties, transparently negotiated by their representatives and freely entered into by each State in conformity with the accepted principles, provisions and rules of municipal and international law. However, the political perspective is quite different. The Brexiteers were never much interested in legal subtleties. They had completely lost all confidence in the constitution and operation of the European Union and they wished, of their own volition and of their own accord, simply to sever the United Kingdom’s association with an organisation of States which they considered to have become moribund and to have strayed from and departed from its original founding purposes. The principal method which they eschewed and advocated in order to achieve this purpose was the restoration of the unfettered and untrammeled sovereignty of the United Kingdom in domestic and international affairs. 

The pro and anti-Brexit campaigns did very little to promote the nobility of their causes or to exemplify the superiority of the democratic process. They reached their collective nadir with the dreadful and lamentable murder of Jo Cox MP. The plain truth was that many of the principal activists and agitators were out to create havoc and were simply up to no good. It seemed, at times, as if the population and leadership of Europe, incited by hostile political forces and urged on by multinational business, had taken to the excessive consumption of cider, sometimes also referred to as “loony soup”, en masse and were also prepared to ingest other intoxicating substances. Brexit was an expression chosen or devised by the tabloid newspapers as a shorthand to describe this orgy of abuse. It bore all the unfortunate connotations associated with Grexit and carried the import of a Latin swearword such as might have been favored by Caligula or Nero. Whatever its etymological or semantic origins, Brexit has succeeded in overwhelming the European psyche, releasing long forgotten dark clouds of meanness, nastiness, hatred and xenophobia which have now spread well beyond Europe’s shores.

Political and social considerations apart, Brexit suffers from major defects in municipal, European and international law. In particular, Brexit raises some very important and unanswerable questions about the ratification of international treaties, especially those treaties which establish, regulate and govern membership of the European Union and relations between its member States, most notably the Treaty of Nice and the Treaty of Lisbon. Treaties are international legal agreements in which states give formal and solemn undertakings of the greatest international significance and consequence. Every Irish person is aware of the importance and the consequences of the 1922 Anglo-Irish Agreement of 1922 which resulted in the partition of Ireland and which still profoundly affects relations between Ireland and the United Kingdom to this very day. The effects of partition greatly affect the lives and economic activities of people in Ireland to this day. They also play a significant part and constitute a potent force or undercurrent in the Brexit debate. The 1922 Treaty alone should remind Irish people and Irish Governments that Treaties should not be entered into lightly or tampered with. To seek to enforce a Treaty without the consent of the parties to the Treaties is tantamount to playing with fire. To seek to falsify the adoption or implementation of a Treaty is to practice falsehood and deceit at the highest level and on the greatest scale. Human history is illuminated by the names and the lists of treaties which have brought great benefit to mankind. Unfortunately, history is also marked by examples of accords which reflect nothing more than man's iniquity and his almost insatiable thirst to dominate his neighbor. Frankly, it must be said that in that respect the European Union's record is a mixed one. The European Union is a treaty-based organisation which is founded on the principle that each Member State of the Union is willing to pool, to share or even to surrender some elements of its sovereignty. The degree to which each State is prepared to pool, share or compromise on its sovereignty is determined by and laid down in the Treaties on European Union, whose texts are the result of long, arduous, if at times unbalanced and disingenuous negotiations. Before they enter into force and become binding upon States, all the the Treaties of the European Union must be ratified by all the Member States of the European Union, using their national ratification procedures, including if necessary legislation or referendum. This is first and foremost to ensure that each Treaty has been negotiated, ratified and enacted with the consent of each and every party to the Treaty. The form of national ratification procedures may vary between member States, but it is a fundamental rule of domestic, constitutional, European and public international law, that no treaty of the European Union may be ratified or enter into force unless and until it has been ratified by all member States of the European Union in accordance with the constitutional procedures of all the European Union’s Member States.

You may ask however what happens if one or more member States of the European Union, or the European Commission itself, conspire to subvert the entire treaty-negotiating or treaty-ratification process? The short answer is that trouble, prolonged and fundamental trouble ensues. The subversion of the treaty-negotiation or treaty-ratification process has the most profound and far-reaching implications for the jurisprudence and governance of the European Union, affecting as it does the application of rules which are tried and tested and which have been deemed appropriate to govern and guide all aspects of the international relations between States in times of peace and war. An example of a fundamental or mandatory rule of jurisprudence and governance is the Commandment which God gave to Adam and Eve that they should not eat of the Tree of Life or taste of the Tree of Knowledge. However, tempted by the serpent, Adam and Eve disobeyed God’s Law, broke His commandment and released harm and evil throughout Creation. The Bible concerns itself with a great many aspects of jurisprudence, of good governance and with he importance of according respect to the rule of Law. But it also addresses the question as to what happens when Man departs from these fundamental rules. Not to put too fine a word on it, apart from telling us about God’s goodness, the Bible gives us a very definite idea of the evil, mayhem and corruption which Satan can generate when he is at play. The Bible leaves us in no doubt but that Satan is a master of corruption, falsehood, fraud and deceit. His corrosive influence and destructive imprints are visible in the many forms of rule and government which humanity has tried out (and usually found to be wanting) throughout history, e.g. empires, kingdoms, oligarchies, dictatorships, principalities, city states, etc. Satan has even interfered in the classic Athenian idea of democracy. The Athenians reasoned that Victory or decision-making power should go, or belong, to whichever side could muster or deliver the greatest number of votes on any particular issue at any one time. In normal times, this meant that democratic politics revolved around elections. But in exceptional circumstances, on matters of exceptional public importance, democracy could have recourse to a blunter, more sweeping, more powerful and more direct instrument “the referendum” (in Latin grammar “a gerund” so always in the singular). In a referendum, the people decide directly for themselves. In a referendum, it is illegal for a Government or an elected Assembly to seek to intervene in the vote or to interfere with the result. Democratic elections are notoriously open to abuse (as per Hitler and Mussolini). But a referendum is just as vulnerable (as per Napoleon and Stalin). Unfortunately, the history of modern Europe and of the European Union has been punctuated and tarnished by the holding of sham or false referendum, accompanied by interference in and falsification of  referendum results.

Under Bunreacht na héireann (the Constitution of Ireland) changes or amendments to Ireland’s executive, legislative and judicial arrangements, necessitated by Ireland’s membership of the European Union, can only be implemented or given effect to if these changes are agreed upon and approved of by the majority of the people of Ireland voting in a validly and properly conducted referendum. An Irish referendum (and a re-run of that referendum) was held in relation to the adoption of the Treaty of Nice. Another referendum (and a re-run of that referendum) was also held in relation to the Treaty of Lisbon. Unfortunately, Bunreacht na héireann (the Constitution of Ireland) does not provide for the re-running a referendum in relation to an international treaty when the Irish people have already decided to reject its adoption in a referendum, nor could it. A referendum is a concept borrowed from Roman law. In Latin, the word “referendum” (meaning “that which ought to be decided”) is a gerund. Gerunds exist only in the singular form and have no plural. Legally, grammatically and etymologically-speaking, holding a referendum in the Roman Republic meant that the people of Rome were invited to vote once, and once only, on a political or legal issue of exceptional public importance. The respect due to the sovereignty and independence of the Irish people requires that their sovereign decision taken, adopted and expressed in a validly conducted referendum, held for the purpose of amending (or not amending as the case may be) the provisions of Bunreacht na hEireann to incorporate and give effect to the terms of a Treaty of the European Union, must be accepted as incontrovertible, immutable and final.

On 7 June 2001, the Irish people pronounced themselves on the adoption of the Treaty of Nice. This Treaty could not enter into force for Ireland (or the other Member States of the European Union) unless it was approved by the majority of Irish voters voting in a referendum. The Treaty of Nice addressed a number of issues. The Irish media made much of the fact that if the Treaty were adopted Ireland might lose its permanent full member of the European Commission. This was something of a red herring however. The real “red” issue at stake in the Treaty of Nice was whether its adoption would lead to a radical and dramatic  enlargement of the European Union towards Eastern Europe by allowing for the accession of some eleven East European States which had formerly belonged to the Soviet Communist bloc. Taken together with the recent reunification of Germany upon the ending of the Cold War, such an enlargement would have the effect of changing the nature and direction of the European Union and of its membership for ever. It is almost impossible to decide with hindsight why an entire nation votes a particular way in a referendum. Nor indeed given the need to preserve and respect the secrecy and sanctity of the ballot should such an exercise be encouraged in a democracy. Almost one million citizens voted in the referendum on the Treaty of Nice and the Irish people decided by a majority of some 70,000 votes that they wished to reject the Treaty. Under Bunreacht na hEireann (the Irish Constitution) and in accordance with accepted legal and democratic principles, that should have been that. But that would have been counting without the Hoodlums of Destiny. The late Taoiseach Seán Lemass had once described Fianna Fáil as a “slightly constitutional party” and his successors at the helm and leadership of Fianna Fáil knew a thing or two about thwarting the Constitution and subverting the democratic process. Taoiseach Bertie Ahern, Finance Minister Charlie McCreevy, Foreign Minister Brian Cowen, Health Minister Micheál Martin and a number of other more junior gauleiters, skilled in manipulating the democratic process, set about reversing the referendum result and altering and modifying the sovereign will of the Irish people as expressed in a referendum. The Hoodlums' strategy resulted in the Irish people being forced to vote again on the Treaty of Nice within a year. The Hoodlums of Destiny were assisted, wittingly or unwittingly, in their blatantly unconstitutional efforts by a great many people and bodies who should perhaps have known better. These people and groups included a number of political parties, a variety of economic interests and some distinguished politicians such as President Havel of the Czech Republic, European Parliamentarian Pat Cox, former President of Ireland Patrick Hillery and former Taoiseach Garret Fitzgerald. It was just as if all those who had voted “Leave” in the Brexit referendum were being told to vote again, and again, until the “right” result was obtained. Just like a British referendum, an Irish referendum cannot be run as a tennis match.  A referendum cannot be played over five sets (or run and re-run) until enough Irish or British voters reach the result sought by their non-elected masters in Berlin, Paris or Brussels. The decision to hold a second referendum on the Nice Treaty clearly contravened Ireland’s constitution, but its consequences and ramifications were felt far beyond the confines of the Emerald Isle. Bertie Ahern and his acolytes were past masters at manipulating the democratic process at the national level. Now they were being afforded the opportunity to exercise their dishonesty at the international level and, in the process, of realigning the geo-political map of  Europe at the same time. It was not for nothing that Charles J. Haughey (a fine judge of form) had described Ahern as “the shrewdest, most cunning and most devious of them all”. He might as well have added “the most evil”. The efforts undertaken by Bertie Ahern and his Fianna Fáil colleagues to reverse the outcome of the Irish referendum on Nice contravened the Irish Constitution (Municipal Law), but they also violated European and International Treaty Law, European Union Law and Public International Law. Ahern’s exceedingly dishonest decision and that of his colleagues in Government would carry very dramatic and negative geo-political effects for Ireland and the European Union as a whole. The sovereign rejection of the Treaty of Nice by the Irish people means that the purported enlargement of the European Union from fifteen to twenty-six Member States (by absorbing eleven former Communist or Soviet bloc States) is unlawful, invalid and of no effect whatever under municipal, European and public international law. The subsequent participation of those eleven former Soviet Communist States in all the activities of the European Union, including its policy-shaping, its decision-making and in the implementation of its foreign and security policy, was illegal, unlawful and ultra vires. The participation of these eleven former Soviet Communist States in the activities of the European Union based upon the non-ratified Treaty of Nice has the effect of rendering all of the activities undertaken by the European Union as an international organisation of States illegal, unlawful, ultra vires and of no legal effect whatever. Mr Ahern and his clever friends have opened up a can of worms which may yet carry a sting or a bite as savage and deadly as any delivered by the Celtic Tiger on a European or global scale. In organizing an unconstitutional referendum on a Treaty which had already been voted upon and rejected by the Irish people, Bertie Ahern and his acolytes  violated not only the sacred duty of trust which they owed to the Irish people, but also severed the ties of honesty, friendship and trust which bound Ireland to the other Member States of the European Union.

On 7 May 2008, Brian Cowen succeeded Bertie Ahern as Taoiseach. If he did not know so already, Brian Cowen soon found out that Bertie Ahern had not left him enough money to buy himself even a single set of “Emperor’s new clothes”. It should be said that Brian Cowen was more sinned against than sinning. He was an intelligent, courteous, diligent and likable Minister who always made every effort to master his brief. Despite what his opponents and the media would say, he would not have been the first Irish Taoiseach to drink a pint or to sing ballads to the party faithful. Indeed these activities would not usually be considered to constitute reserved sins in Ireland. But unfortunately Brian Cowen was ill-prepared to deal with the result of the referendum on the Treaty of Lisbon. I have analysed the contents of the Treaty of Lisbon in another post (also published on LinkedIn). Suffice to say that the Treaty of Lisbon radically affects the decision-making process in the European Union and that it is a Treaty which is demonstrably bad for both Ireland and the United Kingdom and a great many other states member of the Union. For that reason perhaps, the Treaty of Lisbon was rejected by the Irish people in a referendum on 12 June 2008, by 53.4% to 46.6%, (i.e. a margin greater than that secured by the Brexiteers). Unfortunately Brian Cowen, Foreign Minister Micheal Martin and the rest of the Government opted to pursue the illegal, unconstitutional and unlawful avenue. It was as if the ghoulish Bertie Ahern was still presiding like a specter over Government meetings. Acting ultra vires, the Irish Government decided once more to ignore Bunreacht nahEireann (the Constitution of Ireland) and to force the Irish people to vote a second time. For reasons already stated above, this clearly contravened both the Irish Constitution, as well as Treaty, European Union and public international law.

It should be said that following the decisive rejection of the Treaty of Lisbon by the Irish people, the very depressed Irish Government, suffering from a massive financial Celtic Tiger hang-over, had had to endure the visit of very irate and very hostile President Nicolas Sarkozy of France. Sarkozy was intent on applying unlawful and unconstitutional pressure to make the Irish people vote twice (or as often as it took to achieve the outcome desired not by the people of Ireland, but by France, Germany, the European Commission and vested international financial interests). Sarkozy's strong-arm tactics were at the origin of the Government's decision to hold a second ballot. However, the holding of that second ballot also meant that the appropriate constitutional and legal provisions relating to the holding of a referendum to amend Bunreacht na héireann were now not followed not only in relation to the Treaty of Nice but also in relation to the Treaty of Lisbon. A double whammy! It meant that neither the Treaty of Nice nor the Treaty of Lisbon were actually and constitutionally ratified by Ireland and tat neither Treaty ever entered into force for Ireland or for any other Member State of the European Union. In addition, it also means that none of the provisions of the Treaty of Nice and the Treaty of Lisbon are, or ever were, constitutionally or legally binding upon any Member State of the European Union, including the United Kingdom. The rejection in a referendum by the Irish people of the Treaty of Nice and the Treaty of Lisbon and the consequent non-ratification of both those treaties has profound implications for the European Union, the Member States of the European Union and for states claiming or purporting to be member States of the European Union. Clearly, it is not possible for any member State, or group of member States, to trigger Article 50 with a view to seceding from the European Union because. The Treaty of Lisbon has never been ratified and there is therefore no Article 50. However, equally, no Member State of the European Union, including the United Kingdom, can be bound by any of the decisions taken by the European Union or any of its Institutions since its purported enlargement consequent upon the non-ratification of the Treaty of Nice. The envoys and plenipotentiaries representing and acting on behalf of Her Majesty’s Government in future international negotiations may wish to rely on these legal and political realities in support of the propositions which they may wish to make.

Maurice Biggar

Barrister at Law, Legal and Diplomatic Consultant

8th November 2016