The economic bias of the Constitution makes itself felt very early on – page one, in fact. Article I-3 (2) states: &ldquoThe Union shall offer its citizens an area of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistorted”. There is a non-too subtle linking here of personal freedom, e.g. of expression, association, worship etc., with market freedom, e.g. of gouging, monopolising, dumping etc. It is doubtless this early and frequently alluded to market freedom that has concerned so many voters – though so few politicians. If the Union is to guarantee undistorted markets it would seem to follow that:
- It would be illegal for member States to subsidise private individuals or companies who use wind or solar power to generate electricity (not just for research purposes) and impossible to oblige the national grid to accept supplies from such sources.
- It would be illegal to forbid private operators from cherry-picking more profitable bus routes, thus leaving less profitable bus routes to be served by the State. More drastically still, if the market may not be distorted in any way, surely that would rule out any kind of transport subsidy (e.g. from a philanthropist wishing to expand the bus service for old folk from one bus a day to three).
- It would be possible to force a member State to end cross-subsidisation within the post office (e.g. of rural deliveries by urban deliveries). Indeed, surely complete deregulation of postal services must flow from this article.
- Private health insurance companies would be entitled to refuse cover to elderly and/or sick people without suffering any member State-levied financial penalty. At present, the Irish State is considering whether to make BUPA Ireland hand over €25 million per annum to the state-controlled health insurance company, VHI in a process known as &ldquorisk-equalisation” to compensate VHI for its older customers. This sounds like a tacit admission that in a truly &ldquofree” market, the elderly simply would not be able to afford health insurance. The European Commission approved risk equalisation and, it was reported in the Irish Times on April 1st, BUPA is taking it to court, although article III-278 (7) states: &ldquoUnion action shall respect the responsibilities of the Member States for the definition of the health policy and for the organisation and delivery of health services and medical care.” Of course, the Constitution has not been adopted yet, but it is, we are told, a re-statement of the already existing treaties. This is an interesting one for the lawyers because according to the European Commission Representation in Ireland (personal opinion): &ldquoit may be possible to argue that it will no longer be possible to refuse health insurance to the elderly on the basis of Article II-81 which provides for a prohibition of discrimination inter alia on the grounds of age.”
Riding to the rescue of the post office and public services come a few clauses scattered around the Constitution. For instance, there is article III-166 (2), which states that &ldquoundertakings entrusted with the operation of services of general economic interest or having the character of an income-producing monopoly shall be subject to the provisions of the Constitution, in particular to the rules on competition, insofar as the application of such provisions does not obstruct the performance, in law or in fact, of the particular tasks assigned to them”. That sounds like a get-out clause: you can keep open loss-making post offices in rural districts, in breach of the rules of undistorted trade, if applying those rules would result in closing the post offices. There is also article III-315 (4) (b), which requires unanimity in trade agreements that &ldquorisk seriously disturbing the national organisation” of social, education and health services. Crucially, article III-238 reads &ldquoAids shall be compatible with the Constitution if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of public service”.
I wrote above that these things would seem to follow from article I-3 (2). This is because I am not a constitutional lawyer. Letters and requests to various official bodies, however, were of little help in clarifying matters such as the clash between the unequivocal commitment to free and undistorted competition and the rather vague &ldquocertain obligations inherent in the concept of public service”.
A common refrain in the replies was that the Constitution does not directly deal with, for example, the cherry-picking of bus routes, or risk-equalisation. This is somewhat disingenuous: the Irish Constitution does not directly deal with the theft of apples from orchards, but article 43 does acknowledge the natural right to private ownership of external goods. Some respondents tried to avoid the questions by saying the Constitution will not change the current position, without saying what that position is. Many respondents, including the European Commission Representation in Ireland and Europe Direct (free help line: 00800 67891011) emphasised that they were incompetent to interpret the treaty – this is a job for the European Court. It is understandable but frustrating: vote for the Constitution and let BUPA's lawyers sort out its implications afterwards.
It would not matter so much if the pro-treatyites were more willing to engage with the actual provisions of the Constitution. Generally speaking, though, they are long on woolly talk of how good it is not to be at war with each other and short on the detail. (Labour's Pronsias de Rossa would be a rare exception in Ireland to this rule.) Those opposed to the treaty will quote it. A comparison of the websites of pro-treaty Fianna Fáil and anti-treaty Sinn Féin is instructive. Although Sinn Féin's 2005 response to the Constitution is brief, there is a somewhat out of date reference to an earlier draft of the treaty, which is long and meticulously detailed. Fianna Fáil's coverage of the Constitution over the last few months has generally been limited to short reports of speeches given by party members. The exception is a lengthy speech by Bertie Ahern on the rejection of the Constitution by France and Holland.
In a letter to the Irish Times, John Treacy, minister for European Affairs, writes that the role of the European Parliament will be greatly enhanced, a common theme among pro-treatyites, but he does not say how, or which articles provide for this enhancement. Could he have article III-304 (2) in mind? This reads: &ldquoThe European Parliament may ask questions of the Council and of the Union Minister for Foreign Affairs or make recommendations to them”. The proponents of the Constitution are very enthusiastic about its democratisation of the EU and the Parliament's greater power. For instance, the EU foreign minister must ensure that its views &ldquoare duly taken into consideration” (article III-304 (1)). It may also be that voters did not think such consultations, recommendations, considerations and questions did not go far enough to redress the perceived &ldquodemocratic deficit”.