A leading Constitutional expert who expressed serious reservations about the Charter of Fundamental Rights that is part of the Lisbon treaty has said that the guarantees secured by the Government in June will be effective in ensuring the primacy of our Supreme Court on issues relating to the family and education.
Dr Gerard Hogan SC, who has co-written a core text book on the Irish Constitution, said that there were some cases relating to the family and education which “might have been affected by the Lisbon Treaty or the Charter” would not now be an issue “because of the special protocol which the Government secured last June”.
Dr Hogan went on to say that the protocol “reaffirms the supremacy of the Constitution and indeed the Supreme Court in relation to areas such as the family, life and education”.
Dr Hogan had criticised the Lisbon treaty prior to the first referendum last year, suggesting that the Charter of Fundamental Rights which is attached to the treaty might supercede the Irish Constitution.
In a speech delivered to the Irish European Law Forum, he said that the Charter be “the most profound change” in relation to judicial review and the protection of fundamental rights since the adoption of the Constitution.
And in an article commemorating the 70th anniversary of the Constitution, Dr Hogan warned that the Charter of Fundamental Rights could eclipse the Irish Constitution.
It was possible, he wrote that the importance of the Constitution “may yet be rivalled (or even eclipsed) over the longer term by decisions of the European Court of Justice in respect of the EU Charter of Fundamental Rights if (as may reasonably be expected) the electorate vote Yes at the forthcoming referendum on the Lisbon treaty”.
Both these opinions were expressed prior to the Government having secured protocols guaranteeing that the Irish Supreme Court would have the final say as regards family, life and education.
The guarantees will be added to the next EU accession treaty, which will make them legally binding.
The text of the guarantee relating to family, education and life reads as follows: “Nothing in the Lisbon Treaty attributing legal status to the Charter of Fundamental Rights of the European Union or in the provisions of that Treaty in the area of Freedom, Security and Justice, affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1, 40.3.2 and 40.3.3, the protection of the family in Article 41, and the protection of the rights in respect of education in Articles 42 and 44.3.4 and 44.2.5 provided by the Constitution of Ireland.”