Stanley's blog

Three key questions arise from the Irish ‘No’:

Why ‘No’?

What is the solution?

What can all we learn from the Irish experience?

Why was the Lisbon Treaty rejected?

To understand the context of the result, it is necessary to look at why the referendum was held. The answer is by no means straightforward. Conventional wisdom holds that a referendum is legally required to ratify all EU treaties in
Ireland, but this is not the case. The treaties enlarging the EU (except the Irish one), have been ratified through the Oireachtas (parliament).

The importance of the statement in the Irish Constitution of 1922 that Ireland is a sovereign, independent, democratic state, cannot be over-estimated, having regard to the history of Anglo-Irish relatations. The Constitution gave the Oireachtas the sole and exclusive power for making laws for the State. The Single European Act (SEA) of 1986 introduced new economic competences (such as environment and social policy), expanded qualified majority voting to many economic areas, and formalised co-operation in foreign affairs. The Irish Government did not think the SEA warranted a Constitutional amendment but Mr Crotty, a private citizen, thought otherwise and brought an action in the High Court for a declaration that the ratification by the Irish Government of the SEA without a referendum was unconstitutional. He lost and appealed.

The Supreme Court decided in 1987 that Ireland had joined a dynamic and evolving entity and that an amending treaty could be ratified by the Oireachtas so long as such amendments do not alter the “essential scope or objectives” of the Communities. It found that one element of the SEA 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, notwithstanding that fact that the SEA only envisaged cooperation without any firm commitment, affected Irish independence and sovereignty in the conduct of foreign relations. Concerns over sovereignty and neutrality were clear influences. Thus, a referendum was necessary.

The reasoning of the Court was that of constitutional lawyers (as, interestingly, are both the present and past presidents of
Ireland). The decision was taken by three votes against two with, unusually, the Chief Justice in the minority. Crotty’s political legacy is that Ireland now takes as a matter of course that any amendment to the Treaty requires a referendum.

Further time is needed to form a considered view as to why the Lisbon Treaty was rejected, bearing in mind that there were several reasons and that both emotions and special interests ran deep. The European Council wisely agreed to a period of reflection and to await proposals from the Irish Taoiseach to the October Summit.

Many commentators have suggested that a second referendum is unavoidable. If the Government decides on this course, it would seem sensible to clarify the reasons why a referendum is necessary. The Oireachtas could enact a Bill ratifying the Lisbon Treaty with the understanding that the President can use her discretion to refer the Bill to the Supreme Court under Article 26 for a test of its constitutionality. This would establish what exactly in the Lisbon Treaty requires a constitutional amendment. Any referral would have to be on the basis that, were the Supreme Court to find that the Lisbon Treaty did not require a constitutional amendment, a second referendum would be held.

What is the solution?

Once the reasons for the rejection are more fully agreed and there is a better understanding of the context in which they took, place, a solution has to be found.

It is to be expected that 26 Member States will ratify the new treaty. No-one doubts a favourable decision from the

German Constitutional Court. The Polish President has stated that he will sign the ratification instrument if the Irish are on board. This leaves the Czech Republic. Its Constitutional Court is expected to follow the German decision, but there is as yet not a parliamentary majority in favour. Despite the bitter opposition of Vaclav Klaus and his eurosceptic, right-wing, neo-liberal ODS, it is hard to believe that the incoming Presidency will not, in the end, ratify.

There is no early solution upon any other basis than a second Irish vote, with a Declaration added to the Lisbon Treaty meeting as many as the identified concerns as possible, most of which require no more than clear explanations, which the badly-run ‘Yes’ campaign failed to provide.

Perhaps the most worrying issue is that of timing. Pressuring Ireland into an early decision is high-risk; on the other hand, holding next June’s European Parliament elections on the basis of the Nice Treaty is courting disaster. My view is that it is essential, despite the risk, to adopt the Lisbon Treaty before Spring 2009.

What can all we learn from the Irish experience?

Le Général de Gaulle called the referendum a “very blunt instrument: never answers the question asked.” It is therefore to the individual a consequence-free exercise: an opportunity to protest – against food policies, losing a local hospital…

A substantial “No” vote can be anticipated, whatever the question. Referendums offer a platform for outsiders.

A further worry is that the referendum is an attack on a tradition of European representative democracy.

The biggest worry, however, centres round two, possibly inter-connected, factors: Libertas and the
US influence. First, Libertas, led by multi-millionaire Declan Ganley, fought an effective “No” campaign and plans to field more than 400 candidates in the European Parliamentary elections. He plans to turn the pressure group into a party with just one policy: to fight the Lisbon Treaty. Another well-funded, well-organised campaign could be seriously damaging.

Second,there appears to have been US neo-con activity opposing ratification, exemplified by the pugnacious, egoistical but far from stupid John Bolton’s interventions and visit to Ireland. He argued that the Treaty could “undercut NATO” (of which Ireland is not a member!). If the EU had its own military capacity, NATO will be thought redundant and that Europeans “can take care of their own defence.”

Adding to the mystery is Declan Ganley’s strong links with the US military.

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  1. Following on from our lunchtime chat, an important factor in Nice II was the way in which civil society organisations, notably through the National Forum, stepped to the front of the debate. I suspect they’ll be important again. Martin

  2. I agree in principal with the Irish that major constitutional change should require a referendum.

    I often disagree with the result (e.g. on abortion law) but the principal should be a “must have” for all democracies and we should all learn to accept the result when it happens.

    The real problem with the Irish referendum is that the Irish are having it! The logical constiuancy for a change to the EU constitution is the EU!

    The citizens of the EU should vote in a single referendum and the politicians should all agree to abide by their decision.

    I’m fairly sure that if this happened Nice and Lisbon would both be rejected, cetainly my own vote would be “No” and I’m a fedralist!

    Why? Because it’s too complex. The politicaians obviously don’t understand it, how can a poor layman like me be expected to sign up my future and my childrens future to a constitution none of us have a hope in hell of understanding!

    What we want is something simple that gives us more rights and takes rights away from un-democratic bodies like the council of ministers.

    You will probably tell me that that is exactly what these treaties do! But you should be able to do that on a maximum of 4 pages of A4 without using words that have to be looked up in a law book.

    Very few people I talk to are impressed with the Eurocrates record in recent years. The fact that they went ahead with the expansion before solving this mess was stupid beyond belief! (I said so long before 2004, and I was not the only man in the streat who felt that way).

    What beggers belief is the fact that they are now telling us we should happily accept these changes because they are good for us!

    Says who!? The same people who deciede to let Poland join before sorting out the CAP? The same people who will make counties jump through all sorts of hoops before they come in, but have no mechanisum to expel them if they retract all the changes afterwards?

    Sometimes it seams that the Eurocrats are obsessed with making the EU bigger than the US just so that they can say “look! our economy is bigger than yours!”.

    I used to trust these people, now it will take a lot before they start to earn my trust again. And, as I said, I’m a natural constituant!

  3. Jon
    Is the Council less democratic than, say the British cabinet?
    Both the Constitutional and Lisbon Treaties went ahead by decision of the European Council, ie Member State leaders, not Eurocrats.

  4. I would like to ask you a question regarding the Lisbon treaty. Could you tell me how the Team Presidency included in the Treaty would change compared to the current system of team presidencies?

  5. Roos
    Precise modaities will be finalised by EuropeanCouncil.
    Presidency will consist of teams of three Member States, operating for 18 months.
    Each will chair all Council configurations for six months in turn (except Foreign Affairs Councul).

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