DAVID CAMERON’S SPEECH

The Conservative plan, as set out in David Cameron’s speech, is to try to renegotiate the terms of UK membership in the EU, if it wins the next general Election, and put the terms to a referendum.

The risk is that Labour may feel under pressure to adopt a similar policy, so as to prevent a leakage of its votes to UKIP.

It is very unlikely that the results of any such renegotiation, whether conducted by Labour or the Conservatives, will satisfy British popular expectations.  And if that is the case, the UK electorate may choose in a referendum to leave the EU.

This renegotiation is likely to be a disappointment because the expectations in Britain are vague and unrealistic. David Cameron did not offer any clear negotiating objectives in his speech.

SINGLE MARKET IS NOT A FREESTANDING ENTITY

He seemed to think that the EU Single Market was some sort of freestanding entity separate from common EU policies on regulation, working time, transport, and education. But for other EU nations, it was in return for policies on these things, that they opened their markets to the rest of the EU, in the first place. The Single Market is a delicate political construct that cannot be easily unpicked.

And while accepting that the EU needed to resolve the euro crisis, he wanted  “contrition” to be expressed  by those who created the euro, notwithstanding that  Economic and Monetary Union was on the EU agenda before a previous Conservative Prime Minister negotiated the  UK’s entry terms! 

He also wanted the goal of “ever closer union” dropped from the EU Treaties, even though that too was part of the Treaty before the UK joined.

He is 40 years late with these ideas

RENEGOTIATION WILL BE WITH 26 OTHER GOVERNMENTS

The UK renegotiation will not be   with bureaucrats in “Brussels”. It will be with the Governments of every one of the other twenty-six states in the EU. Britain may want to pay less, but other countries may want it to pay more. Many other EU countries see the very things British negotiators would most like to be rid of - like the working time directive - as part of what they gained, in return for their opening  up to the Single Market in the first place.

Concessions on these issues will, in particular, be anathema to left leaning Governments, of which there are an increasing number.

Exempting Britain from the Common Agricultural Policy (CAP), another possible British demand, will get nowhere.

Repatriating regional policy will not go down well with countries who have recently joined  the EU, and  whose incomes per head are much lower than those in Britain

ALL EU RULES HAVE BEEN MADE WITH BRITISH INVOLVEMENT

British popular opinion has been constantly led to believe that the  EU is a foreign entity, with which Britain has a sort of treaty,  and not as what it actually is – a Union of which the UK has  a participating member with a vote on every decision.

The role of British MEPs, British ministers, and a British Commissioner in EU decisions has been systematically ignored in the UK media and all decisions inaccurately presented as emanating from an “unelected” bureaucracy.

If possible results of a renegotiation are hyped up in the next British General election, and  lots  of “red lines” promised, the actual results of the renegotiation will prove to be paltry by comparison. That could lead to UK exit.

IMPACT ON NORTHERN IRELAND PEACE 

I am particularly worried about the effect of Britain leaving the EU on the fragile situation in Northern Ireland.

Northern Ireland, and its reversible peace process, is being ignored in the debate taking place in Britain. It is also being ignored in the rest of Europe, where the impatience with the British is palpable.

Obviously if the UK leaves the EU, it will negotiate a new relationship with the EU. 

But what sort of relationship will it be?

One of the big drivers of anti-EU sentiment in Britain is immigration of EU citizens from central and eastern European countries, like Romania, Bulgaria, and the Baltics. Gordon Brown famously encountered this sentiment during the last British General Election.

IMMIGRATION CONTROLS AT NEWRY?

If the UK leaves the EU, it would be free to restrict immigration from some EU countries. But, as a continuing member of the EU, the Republic of Ireland could not do so. So if the UK wanted to prevent these EU citizens entering the UK through the Republic, it would have to introduce passport controls at Newry, Aughnacloy, Strabane and on all other roads by which such EU immigrants could cross the border from the Republic into the UK.

CUSTOMS POSTS AT STRABANE?

If the UK is outside the EU, tariffs would have to be collected on UK exports entering the Republic and vice versa. Average EU tariffs are quite low, but some tariffs, on things like dairy products and clothing, are quite high. Customs posts would have to be placed on all roads leading across the border to ensure collection of these tariffs. Smuggling, with all its potential as a funding source for other forms of illegality, would become very profitable again.

But the human and political cost in border counties would be the worst aspect of it. Nationalist communities would again feel cut off from the Republic by the inconvenience of passport controls, and of customs posts

Since Northern Ireland came into being as a separate entity in 1920, the large nationalist minority there has retained a very strong sense of identification with the rest of the island.

The possible reintroduction of customs posts, and of immigration controls, would undermine the efforts that have been made , in the Good Friday Agreement, to reduce the divisions between North and South and between Ireland and the UK.

Given that UK Prime Ministers have had to devote so much time to the so called “Irish Question” for the last 150 years, it is amazing that the current UK debate on EU membership is being conducted as if Ireland did not exist, or the UK had no interest in it.

Some might say that  fears of the UK having customs posts and passport controls on the Irish border are exaggerated because they think the UK outside the EU could  easily negotiate a free trade and free movement deal with the EU

UK CANNOT BE BOTH IN, AND OUT, OF THE EU AT THE SAME TIME

There is a big snag here.

To enjoy continued free access to EU markets for its goods and services, Britain would have to continue to apply EU rules, as now, but WITHOUT having had any say at all in them – something the UK does have as an EU member. 

David Cameron had a point yesterday when he argued that the nature of the EU is changing in response to the euro crisis, and as a non euro member the UK’s relationship with the EU will change anyway.

 But there was absolutely no need for him to promise an in or out  referendum, which places him in a straight jacket.

FIVE REASONS TO NEGOTIATE A TRANSATLANTIC FREE TRADE AGREEMENT....

...AND THREE ISSUES THAT MUST BE RESOLVED

I was in Madrid last weekend to speak at two  meetings .  

One was at the IE Business School, which has been rated by the Financial Times as the number One business school in Europe, and where my topic was the Irish economy and the euro.

The other meeting was at the Casa America. There the debate was about intensifying economic cooperation between the United States and the European Union, including the possibility of negotiating a formal EU/US Trade Agreement.

Other speakers at the latter event included the Spanish Minister for Foreign Affairs,    Jose Manuel Garcia Maragallo, the former Spanish Minister for Foreign Affairs, Ana Palacio, the US Ambassador to Spain, Alan Solomont ,  and the Irish Ambassador to Spain, Justin Harman

In my remarks, I identified six reasons why a Transatlantic Free Trade Agreement would be a  good idea

1. 15 million jobs  are already  dependent on transatlantic trade and investment , and eliminating the remaining barriers  to trade and investment could increase that number  of jobs and  could be worth  at least 200 billion euros in additional business
2. Negotiating such an agreement could be a lever for removing remaining inefficiencies on both    sides of the Atlantic and help both the EU and the US to compete better on world markets.
3. It would help restore global economic confidence after the recent failure of the  WTO Doha trade round negotiations
4. It would prevent the US shifting all its economic energies towards the Pacific  Basin, where it is already negotiating a comprehensive  agreement
5. A completed EU/US Trade Agreement would anchor the UK more firmly in the EU, because of the advantages it would bring, and counter the trend towards the UK leaving the EU altogether, which is gathering strength

I then identified three problems that have to be resolved, or taken into account, in such a negotiation.

1. While industrial tariffs between the US and the EU  are quite low and could be  eliminated without  too much  resistance by protectionist interests, the same cannot be said for Agriculture, where the US is increasingly protectionist, and the EU has a Common Agricultural Policy which  would be a barrier to some US  food exports to Europe
2. There are significant regulatory barriers to trade and investment. For example, the US protects its domestic  airlines from European  competition, insists that its government entities buy only  US  goods and services, and has different views and rules on hormones and GMOs in food products, and on data privacy, to those  in Europe
3. Any Agreement we negotiate should be open to others, for example to Mexico, Canada, Latin America and Africa so that it can evolve in into something that covers the  whole Atlantic basin, South as well as North. Seven of the ten fastest growing economies in the world today are in Africa.  It also should be compatible with the WTO.

THE ABORTION ISSUE IN IRELAND

Article 40.3,3 of the Irish constitution gives a right to life to an unborn child. It is included along with other rights of the person

It says

“The state acknowledges the right to life of the unborn and, with due regard to the equal right to life of mother, guarantees  in its laws to respect , and as far as practicable, by its laws to defend and vindicate that right”

This was inserted into the constitution of Ireland in 1983 by the people in a referendum .

It remains part of the constitution and there is no proposal to change it on the table.

In the so called X case  in 1992, the Supreme Court  decided that this article could be construed  as allowing for the life of an unborn to be  ended if the mother  was  believed to be suicidal.

Following a recent European Human Rights court case, the Government is contemplating introducing a law that would clarify when the life of an unborn child may be ended.

It is considering allowing in this law that

1. a threat of suicide by the mother to be one of those grounds for ending the life of the unborn child, along with

2. medical threats to the life of the mother where the medical treatment may require the ending of the life of the unborn child.

Would a law, including a provision allowing a suicide threat to be a basis for ending the life of an unborn child, be consistent with the constitution which requires   the state to “defend and vindicate”  the unborn child’s ”equal” right, to  be allowed to live?

In this paper, I try to answer that question and I examine the logic of the Supreme Court in the X case. 

I also deal with the more recent European judgement.

I conclude by suggesting how the law might best  be changed in accordance with the clear language of the constitution.

THE LANGUAGE OF THE CONSTITUTION, AND THE MEANING OF WORDS

The Irish Constitution belongs to the people.

It uses language, words, to convey certain understandings of what the Irish people guarantee to one another as a basis for living together.

The words of the constitution can only be changed by the people, and if so, the words in constitution should be interpreted, as the same words would be understand  in daily usage. 

They should not be interpreted  in some arcane way, understood only by constitutional lawyers.

Article 40 of the constitution acknowledges an EQUAL right to life of a mother, and of her unborn child. 

The sentence would have made sense even if the word “equal” was not there, but the word “equal” IS there, and it was put there with the explicit approval of the people.

Many words we use in daily language have ambiguous or various meanings, but the word “equal” has only one  meaning. Equal means equal, and that is the word in the constitution 

By any normal understanding of language, a risk is not equal to a certainty. A risk that someone might unilaterally end their life, is not equal to a certainty of the ending of another by the actions of a third party.

Likewise a law that took away a  right , before it could be exercised independently, could hardly be interpreted as” defending and vindicating” the same right

Judge Hederman put it this way in his minority judgement in the Supreme Court on the X case.

“The Eighth Amendment establishes beyond any dispute that the constitutional guarantee of the vindication and protection of life is not qualified by the condition that the life must be one which has achieved an independent existence after birth. The right of life is guaranteed to every life born or unborn. One cannot make distinctions between individual phases of the unborn life before birth, or between unborn and born life. “

ARGUMENTS USED IN THE “X” CASE JUDGEMENTS

The other Judges in their X case judgements offered two reasons for not treating the right to life of the unborn child as equal, in practice, to that of its mother, notwithstanding the words of the constitution.

1.) MEMBERSHIP OF A FAMILY GROUP

One was that the mother’s life is to be preferred because she has wider responsibilities. This is what Chief Justice Finlay said

“In vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur. “

Given that, in EVERY case, a mother of an unborn child will already be” a member of a family group”, if membership of the mother of a “family group”, is a sufficient ground for  grating an abortion, then in no case could an abortion be denied.

That would  not be an interpretation of the relevant article in the constitution, but an abrogation of it.

2.) A ”CONTINGENT”  LIFE

The other argument used in the Supreme Court was that the life of the mother was a life in being, whereas the life of the unborn child was “contingent”. 

This is what the late Judge McCarthy said

“ The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery. It is not a question of setting one above the other but rather of vindicating, as far as practicable, the right to life of the girl/mother (Article 40, s.3, sub-s. 2), whilst with due regard to the equal right to life of the girl/mother, vindicating, as far as practicable, the right to life of the unborn. (Article 40, s.3, sub-section 3). If the right to life of the mother is threatened by the pregnancy, and it is practicable to vindicate that right, then because of the due regard which must be paid to the equal right to life of the mother, it may not be practicable to vindicate the right to life of the unborn.” 

Essentially he was arguing that, once a right is contingent on the behaviour of another person, it does not enjoy the protection of the constitution.

That is a radical doctrine, that would not be  held by many human rights lawyers.

Again, it is hard to reconcile with what the constitution actually says.

All lives are ”contingent” on the behaviour of others.  The life of a baby AFTER birth is certainly “contingent” on the care given to it by its mother and by others. 

If Judge McCarthy’s jurisprudence around “contingent” lives were to be taken as settled law on the right to life ( born or unborn), it  leave little value in the constitution.

OIREACHTAS SHOULD APPLY COMMON SENSE, AND INTERPRET PLAIN LANGUAGE PLAINLY

For these reasons, I would argue that the jurisprudence in the X case should not be treated as immutable and beyond question.

It is arguable, in common sense, that, in the X case, the President of the High Court, Declan Costello, and Judge Hederman in the Supreme Court were right, and the Supreme Court majority was wrong.

It would be imprudent for the Oireachtas to go along, without applying its own judgement,  with the view of the Expert Group that the particular decision a  majority of Judges, in the particular circumstances in the X case (a 14 year old rape victim), in the state of knowledge of the time,  is “the law of the land” in some immutable sense, and that a future Supreme Court will not come up with a better, more practicable, and more faithful constitutional reasoning in a  future case . 

Just as legislators can change their mind, so can judges. 

The members of the Oireachtas should read the X case judgement for themselves, and decide for themselves how constraining it is on them as to what they can, or must, do. They should also read the words of the constitution in their most likely meaning, and prepare legislation on that basis.

THE A,B, AND C CASES 

Neither the A the B, nor the C case involved a threat of suicide.

In only the C case, was a finding made against the  State. 

The C case concerned whether accessible and effective procedures existed whereby a  woman could establish her entitlement to a lawful abortion in Ireland .

C had an abortion in England believing that she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time.  Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester.

The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. 

When she discovered she was pregnant, she consulted her General Practitioner as well as several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal framework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus.

She therefore researched the risks on the internet. Given the uncertainty about the risks involved, she  travelled to England for an abortion.

She maintained that she wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage, but that she could not find a clinic which would provide this treatment (in England) as she was a non-resident and because of the need for follow-up.

She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. This happened in England , not Ireland.

On returning to Ireland after the abortion, she suffered complications of an incomplete abortion(in England), including prolonged bleeding and infection. She alleges that doctors(in Ireland) provided inadequate medical care. She consulted her own GP several months after the abortion and her GP made no reference to the fact that she was visibly no longer pregnant.

It would appear that it is not a case which, of itself, requires the Oireachtas to enact wide ranging legislation dealing with circumstances, such as a suicide threat, which was not even considered by the Court. The Oireachtas is, however, obliged to clarify the obligations of doctors in medical consultations. 

ECHR‘S GENERAL VIEW OF IRISH LAW ON ABORTION

It is worth adding that the Court found (in para 226) that the restrictions on abortion in Ireland 

“were based on profound moral values concerning the nature of life which were reflected in the stance of the  majority of the Irish people against abortion during the 1983 referendum  and which have not been demonstrated to have relevantly changed since”

The Oireachtas should take particular note of this

WHAT THE OIREACHTAS MIGHT DO NOW

It seems clear that legislation to deal with circumstances analogous to the C case is necessary. This would cover all circumstances where life saving treatment might be indicated, which  might affect the life  of the unborn. Such legislation may involve challenging drafting, but it will not be controversial. Given that the C case arose in 2005, it could be said that this legislation is quite urgent and should not be delayed by more difficult and inherently controversial matters.

The matter of whether to follow the Supreme Court majority, and enact legislation to allow an abortion on the strength of a possible threat of suicide, is something that requires separate consideration and ought not be a basis for delaying action on the C case. Suicide is very difficult to predict. It is rarely due to a single  factor.  The  then Governments Green Paper(para 5.23)  said that a study  that was frequently cited 

“concluded that the prediction of suicide, using standard risk factors, which have been identified in psychiatry was  wrong in  97% of the instances examined”

If that is the case, devising safeguards that are true to the constitution will be  horrendously difficult.  But that will only become fully obvious after the drafting and testing of the legislation is well under way.

It would not be prudent for the Oireachtas to make the legislation to deal  with the C case issues a hostage to this much more difficult and  hazardous exercise.

A COMMENT ON THE COMMENTATORS...IRISH ATTITUDES TO THE EURO CRISIS

A lot of superficial commentary appears in the Irish Sunday papers. 

But there are two columnists I always try to read, because they usually have something to say that  you will not read elsewhere.

My favourite is Colm McCarthy, who writes in the Sunday Independent .

The other is Damien Kiberd, who writes in the Sunday Times(Ireland edition)

This week, Colm McCarthy’s article is entitled

“Now we are asked to trust the guys who screwed up EMU originally.”

Damien Kiberd’s is on a similar theme, and his article is entitled

 “Austerity leaves us in No Man’s Land”.

COLM MCCARTHY

Colm McCarthy claims that the EU single currency has been

 “an unmitigated disaster”. 

He refers to the recent admission by the German Finance Minister, Wolfgang Schauble, that the euro project was

” riddled  with design  flaws”.

Colm claims the “design flaws” were put in place because powerful lobbies in the French and German banking industry lobbied against effective banking union.

 He calls for a public enquiry into how these design flaws came about, because, he argues,  the EU public will be unwilling to  vote for greater EU powers, unless they can first  see that  the reasons for the original mistakes have been  honestly explored. I believe he is right in this.

He also says that

“During 2010, the Irish Government was bullied and harassed by the ECB, acting beyond its powers, into bankrupting itself through paying off foreign investors in bust banks”

This is a reference to the Irish state being required to pay back , in full, the senior unguaranteed bondholders of banks ,like Anglo Irish Bank, that were already bust.

Again he is right, and I agree with him, but he overstates his case a bit.

It was indeed senseless for EU institutions to have insisted on private investors, in a private bank, who made a mistake, getting 100% of their money back from the Irish taxpayer, when bondholders of the Greek sovereign state were subsequently required to take a large haircut.

Surely those who lend to Governments should have got preference over those who lent money, for a good potential rate of return, to private banks!

On the other hand, financial confidence was much more fragile in 2010 than it was in 2012. Perhaps the ECB was afraid of a knock on effect if unguaranteed bondholders were not paid back in 2010. But if the burden of the ECB’s caution has fallen on the shoulders of the Irish taxpayers alone, that burden should be relieved now that the panic is over.

But I think Colm overstates his case in suggesting that this has “bankrupted” the Irish state.

Ireland’s   financial difficulties derive, to a much greater extent from the gap, which still exists to this day, between tax revenue and daily spending on things that have nothing to do with money put into banks, or even interest paid on past debts.

THE IRISH STATE STILL HAS A PRIMARY DEFICIT...  THAT IS IT IS SPENDING MORE, EVERY DAY, THAN IT IS TAKING IN, EVEN IF IT HAD NO INTEREST TO PAY ON PAT DEBTS, AND HAD NOT PUT A SINGLE CENT INTO RECAPITALISING A BANK! 

This awkward fact is not much mentioned by Irish economic commentators. I do not know why. It is only fair to add that, while this primary deficit still exists, it has been dramatically cut since  2009 by the budgets since then, and will probably disappear altogether in 2014, if all goes according to plan

DAMIEN KIBERD

In his article, Damien Kiberd attacks what he calls “austerity economics”.

He says these austerity policies have been 

“dictated by EU leaders who are totally unaccountable –just like the elites that caused the First World War”

He complains that Irish banks were ”forced” to dump non performing loans which resulted in these loan losses being “crystallised within a very short time and at a very high cost”.

Damien’s thinking is a bit loose, to put it mildly. The elite, who” caused” the First War, WERE held accountable, actually. Several lost their thrones. The British Liberal Party never recovered. The Italian Liberals never saw power again. 

Did he really think the Irish banks could have continued carrying those big losses on their books, without recognising or quantifying them, and carried on lending as before? Of course, they could not have done so without a risk of a run on their deposits.

As far as “austerity” being “dictated by the ECB and EU leaders”, as Damien claims, the question he avoids is a simple one.....If the EU, the ECB, and the IMF did not lend Ireland money in 2010, to bridge the gap between day to day spending and day to day revenue, where else was the money going to come from? Who else was going to lend the money?

And if the answer is no one,  that would that have meant more, and faster, austerity, to achieve an immediate and complete bridging of  the entire gap between revenue and spending in ONE year, or even one month.

It would be more accurate to say that what  the EU, the ECB and the IMF “dictated” to Ireland  was that it bridge the gap between its own spending and its own revenue more SLOWLY than it would otherwise have done, by lending Ireland the  bridging finance.

If Damien is saying Ireland should have refused the EU/ECB/IMF money, then he is saying we should have had a huge dose of austerity in 2010, and risked a crash in our entire social system.

Some argue that, while austerity is inevitable for Ireland, Germany, Sweden and the Netherlands should run bigger deficits. Maybe.

But how easy is for them to do that if they are also having to put money aside, to lend to countries that may get into difficulty, and to provide funds for all their own baby boomers who are on the brink of retirement?

German incomes grew at about one fifth the pace Irish incomes grew in the 1994 to 2005 period. 

That is the reality German politicians have to face, and Irish economic commentators should address themselves to German voters, because those are the people who now have to be convinced.