September 15, 2008
Ireland: a constitutional and political quagmire
The findings of the Irish government research into the reasons for
the rejection of the Lisbon Treaty were published on 10 September. The main reason people voted ‘No’ was a lack of knowledge or understanding of what they were voting on (42%).
Taoiseach Brian Cowen will update the European Council on 15 October but is not expected to deliver his government’s final response until the December summit.
A strong feeling remains in Ireland that, if there is to be a second referendum, this cannot be won until autumn 2009. This could well spoil the European Parliament elections which risk being dominated by the Lisbon Treaty and resulting in a Eurosceptic Parliament, which may have difficulty in delivering an absolute majority in the co-decision procedure.
The Supreme Court decided in 1987 (Crotty) that Ireland had joined a dynamic and evolving entity and that an amending treaty could be ratified by the Oireachtas (Parliament) so long as such amendments do not alter the “essential scope or objectives” of the Communities. It found that one element of the Single European Act was not covered by the terms of the original constitutional amendment governing Ireland’s membership of the EU, namely the agreement to develop a common foreign policy. This affected Irish independence and sovereignty in the conduct of foreign relations, notwithstanding that the Act only envisaged cooperation without any firm commitment. Thus, a referendum was necessary (see post of 21 May). With all due respect to the Supreme Court, only a blinkered constitutional lawyer could come to this conclusion.
It is questionable that the entire new treaty needed to have been put to a referendum. Most of its provisions could surely have been ratified in Parliament, leaving only those provisions which affect the Constitution to be put to second referendum. This was not acceptable politically and would have been challenged legally. No authoritative opinion has been published identifying which provisions of the Lisbon Treaty require a referendum.
The Attorney-General has advised the government that a referendum is necessary but the reasoning is not publicly available. It is believed to be along the lines that the conferring of legal personality, the charter of fundamental rights, the creation of new political posts and the abolishment of the pillar system led to the conclusion that a new European Union was being created. This opinion is out of kilter with legal interpretations from other Member States, including Denmark, France and the UK.
Another odd Supreme Court decision made it very difficult for the government to explain to the public why it signed the Lisbon Treaty. The McKenna judgment prevents the government using exchequer money to push an argument in favour or against any referendum. This gives a serious advantage to a well-funded No-campaign. Legislation should be introduced to correct this position.
Although all the political parties supported the Lisbon Treaty, apart from Sinn Fein, there is as yet no agreement among them as to what to do now. The confused legal position, the absence of serious policy papers and the overall lack of transparency do not help the finding of a solution. A veritable legal and political quagmireAuthor : Stanley Crossick