DICK ROCHE IS WRONG ON BOTH COUNTS
21 May 2023
Dick Roche, the Minister for European Affairs, is wrong on both of the counts on which he faults me, in an article in yesterday’s paper. He suggests that I am in error about a key phrase in the Lisbon Treaty, the Amendment to Article 93 which adds to the treaty the injunction ‘to avoid distortion of competition’. He makes the point – which is a common procedure in those arguing for a Yes vote – that this phrase might be used to outlaw our current corporation tax rate, and goes on to say there is a distinction between indirect and direct taxes.
He misses a fundamental point and he also misses the argument I originally made. He seems also not to understand the kinds of procedures that go through the courts – and certainly have done so in this country – ordaining constitutional change on a much less simplistic basis than the rigged arguments that surround the Lisbon Treaty.
If the European Court of Justice were to deal with a ‘distortion of competition’ appeal directed against Ireland, it would do so on the basis of distortion, not taxation. It would order the offending State to eliminate the distortion, leaving the means by which this would be done to the National Parliament. No good constitutionalist or constitutional lawyer would wish otherwise. But it would have the same effect as a challenge against the inequality of our taxation system, which is undeniable.
If Dick Roche himself had read the Treaty as well as he hopes I have done, he would know of a number of clauses dealing with fair trade within the European Union – an issue that has been part of European thinking since the beginning of the Copmmon Market – which would all be invoked in any appeal action to the European Court of Justice. But it seems he only reads the bits he likes.
It is one of the pieces of Yes Vote nonsense to point to the supposed ‘locking’ clauses in the Treaty - which have every appearance of having been put there to ensure support for the Lisbon Treaty, in particular by Ireland – to treat them as sacred protection. Life and the law, particularly consitutional and human rights law, and laws dealing with competition, do not operate like that.
Despite Dick Roche’s contention, I have got no facts wrong so far. What he indulges in, in the first part of his article, is a major distortion of what I said, turning it into a tax issue when it is an issue of how the law mgiht operate in the future.
The second part of his article is more serious. He says: ‘Bruce Arnold should know that this provision [that is, the new amendment to the Constitution which is central to the Referendum wording] has been in our Constitution since 1973 when we joined what is now the European Union’.
I dealt with this in an article last Saturday. Dick Roche is careful to phrase what he has to say solely in terms of ‘what is now the European Union’. He skates over the all-important fact that we amended the Constitution in 1972, in support of the leadership of Jack Lynch and Paddy Hillery, in order to get into the European Common Market, a quite different legal entity with a quite different, and much looser relationship with Ireland, Britain and Denmark.
What we are doing now is fundamentally new and, in my judgement, raises huge issues about the continued survival and prosperity of this country. Far from being ‘way off the mark’, as Dick Roche says, what I said in the article last Saturday was totally accurate on the constitutional point about the huge difference between 1972 and today.
He talks about Ireland not being able to do, on its own, what Lisbon will make possible for us to do. This is a piece of vague speculation for which there is little or no proof. We will manage, as we have always managed, and we will play a part in Europe that will be more dynamic the more independent we are. We do not need to prove our credentials all over again. In the wise words of Jean-Claude Juncker, the Luxembourg Prime Minister, which he said during that country’s presidency, in May 2005 ‘If it's a Yes, we will say 'On we go", and if it's a No we will say 'We continue.' And that is how it will be.
Dick Roche talks of the Lisbon Treaty as ‘enabling’ Ireland to continue deriving benefit from membership. What exactly will stop us doing the same if we vote No?
More questionble still is the emotive sentence: ‘Not for the first time, fate more than choice has placed the key to Europe’s future in the hands of the Irish people.’
No, Dick, it wasn’t fate, it was a bunch of bureaucrats. And it is not Europe’s future that is at stake; it is our own.
He misses a fundamental point and he also misses the argument I originally made. He seems also not to understand the kinds of procedures that go through the courts – and certainly have done so in this country – ordaining constitutional change on a much less simplistic basis than the rigged arguments that surround the Lisbon Treaty.
If the European Court of Justice were to deal with a ‘distortion of competition’ appeal directed against Ireland, it would do so on the basis of distortion, not taxation. It would order the offending State to eliminate the distortion, leaving the means by which this would be done to the National Parliament. No good constitutionalist or constitutional lawyer would wish otherwise. But it would have the same effect as a challenge against the inequality of our taxation system, which is undeniable.
If Dick Roche himself had read the Treaty as well as he hopes I have done, he would know of a number of clauses dealing with fair trade within the European Union – an issue that has been part of European thinking since the beginning of the Copmmon Market – which would all be invoked in any appeal action to the European Court of Justice. But it seems he only reads the bits he likes.
It is one of the pieces of Yes Vote nonsense to point to the supposed ‘locking’ clauses in the Treaty - which have every appearance of having been put there to ensure support for the Lisbon Treaty, in particular by Ireland – to treat them as sacred protection. Life and the law, particularly consitutional and human rights law, and laws dealing with competition, do not operate like that.
Despite Dick Roche’s contention, I have got no facts wrong so far. What he indulges in, in the first part of his article, is a major distortion of what I said, turning it into a tax issue when it is an issue of how the law mgiht operate in the future.
The second part of his article is more serious. He says: ‘Bruce Arnold should know that this provision [that is, the new amendment to the Constitution which is central to the Referendum wording] has been in our Constitution since 1973 when we joined what is now the European Union’.
I dealt with this in an article last Saturday. Dick Roche is careful to phrase what he has to say solely in terms of ‘what is now the European Union’. He skates over the all-important fact that we amended the Constitution in 1972, in support of the leadership of Jack Lynch and Paddy Hillery, in order to get into the European Common Market, a quite different legal entity with a quite different, and much looser relationship with Ireland, Britain and Denmark.
What we are doing now is fundamentally new and, in my judgement, raises huge issues about the continued survival and prosperity of this country. Far from being ‘way off the mark’, as Dick Roche says, what I said in the article last Saturday was totally accurate on the constitutional point about the huge difference between 1972 and today.
He talks about Ireland not being able to do, on its own, what Lisbon will make possible for us to do. This is a piece of vague speculation for which there is little or no proof. We will manage, as we have always managed, and we will play a part in Europe that will be more dynamic the more independent we are. We do not need to prove our credentials all over again. In the wise words of Jean-Claude Juncker, the Luxembourg Prime Minister, which he said during that country’s presidency, in May 2005 ‘If it's a Yes, we will say 'On we go", and if it's a No we will say 'We continue.' And that is how it will be.
Dick Roche talks of the Lisbon Treaty as ‘enabling’ Ireland to continue deriving benefit from membership. What exactly will stop us doing the same if we vote No?
More questionble still is the emotive sentence: ‘Not for the first time, fate more than choice has placed the key to Europe’s future in the hands of the Irish people.’
No, Dick, it wasn’t fate, it was a bunch of bureaucrats. And it is not Europe’s future that is at stake; it is our own.
