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  • irishtimes.com - Posted: August 25, 2008 @ 10:46 am

    Now get out of that: the Lisbon conundrum

    Deaglán de Bréadún

    It’s not every day you see prominent Fianna Fáil people disagreeing in public. This was the spectacle provided by the Humbert Summer School in Co Mayo (the programme bilocates between Ballina and Killala). 

            On the prospect of a second Lisbon referendum, Mary O’Rourke said, in effect, “Not on your nanny”. Kick it way down the road and do what you can in the meantime by legislation. Enter Dick Roche, Minister of State for European Affairs, who was not listed on the original programme,  to say that “ultimately” there was no other option and legislation wouldn’t work. Both stressed that they were speaking personally.

           Mayr O’Rourke is a formidable politician. A former minister herself, she is the aunt of the Minister for Finance Brian Lenihan and Minister of State for Integration Conor Lenihan. She is much more of an insider in FF than Mr Roche, for all his vast knowledge and expertise in European matters.

             Meanwhile the rest of the EU is tugging at Brian Cowen’s sleeve. When are you going to fix this thing, mon ami?

            From a basic political point of view — i.e. getting votes in future elections — the most congenial option for the Government would be, as the song says, to let it lie there and  let it die there. But Europe is impatient and we depend on our relationship with Brussels for so much these days.

           There is a difference of view among the experts about the legislative option. Senator Eugene Regan of Fine Gael, a barrister by profession and former member of Peter Sutherland’s cabinet when the latter was an EU commissioner, felt it was eminently possible to “strip out” the less-contentious parts of the Treaty and vote them through the Oireachtas. This would fulfil the requirement to have the Treaty ratified by all 27 member-States. The rest could be put to referendum in due course.

            But the vastly-experienced Noel Dorr, who has had a distinguished career representing this country as a senior diplomat and knows both the EU and the UN inside out, told the Humbert devotees at the weekend that he did not think legislation was a runner. The people have voted against the ratification of Lisbon and that would appear to be that. They are the “ultimate repository” of sovereignty. 

            Dick Roche also gave it as his “personal” view that the legislative option was not on. So what’s the likely outcome? At this stage it looks like a second referendum but not for a long, long time. After the local and European elections next summer seems the likeliest choice for Brian Cowen. Brussels will have to be understanding of his predicament.

            Whatever happens, the Government will  have to address the issue. The No side would be furious if the legislative route were followed, although there might be little of a practical nature they could do. A second referendum would also raise vociferous objections and there is no certainty whatsoever that the Treaty would be passed next time around.

            Wasn’t Bertie the cute hoor to get out when he did?

            Deaglán de Bréadún, Political Correspondent, The Irish Times and author of The Far Side of Revenge: Making Peace in Northern Ireland, recently published in a second edition by Collins Press, Cork www.collinspress.ie

    • Ray Dollard says:

      The Treaty as rejected by the people cannot be put to them again. Apart from wrecking the Constitution and the only legal powers that the people have, this – a second referendum on the same treaty – would not survive a constitutional challenge. It’s time that the Attorney-General told the Government the legal position.

    • Deaglán says:

      With respect, Ray, the Government could legally hold a second referendum, as was done with the Nice Treaty and on the issue of Divorce. There is an alternative proposal to “strip out” certain elements of the Treaty and run them through the Dáil and Seanad, with the President having the option of submitting the legislation to the Supreme Court in order to test its constitutionality. If the Court gave it the seal of approval, the Treaty would then be considered to have been ratified by Ireland. There could then be a referendum on the other parts of the Treaty which were considered contentious. Noel Dorr says this could probably not be done legally but Senator Eugene Regan takes an opposite view. Deaglán

    • Denis Cooper says:

      “There is a difference of view among the experts about the legislative option. Senator Eugene Regan of Fine Gael, a barrister by profession and former member of Peter Sutherland’s cabinet when the latter was an EU commissioner, felt it was eminently possible to ‘strip out’ the less-contentious parts of the Treaty and vote them through the Oireachtas. This would fulfil the requirement to have the Treaty ratified by all 27 member-States. The rest could be put to referendum in due course.”

      I don’t claim to be an expert, but on the face of it the Irish instrument of ratification must refer to the whole Treaty. If any member state deposited an instrument which covered some parts of the Treaty but excluded others, it would not be the case that the whole Treaty had been ratified by all member states, and so legally none of it could come into force.

      Article 48 of the present Treaty on European Union, page 34 here:

      “The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded … The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.”
      Which necessitates Article 6 of the Final Provisions of the Treaty of Lisbon, here:

      http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0135:0135:EN:PDF

      “1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

      2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.”

    • An Fear Bolg says:

      “a second referendum on the same treaty – would not survive a constitutional challenge.”

      So wrong. What grounds are there to a constitutional challenge? The government can keep asking the question again and again if they wanted – perhaps not clever, but also not unconstitutional.

      People often confuse the issue of whether things are constitutional with the issue of whether they would like certain things to happen.

    • Dan Sullivan says:

      What the government need to hold another referendum on the same topic is a mandate to do so. They could in theory turn the European and local elections into a vote to grant them such a mandate but I suspect few of the candidates from the government parties in either poll would appreciate the intention not to mind the likely consequences.

    • Ray Dollard says:

      with respect Nice1was not the same as Nice 2 nor were both divorce referenda the same. I believe that there is a substantial argument to say that Lisbon has been decided by the people and exact same treaty cannot be put again. I would see it as a matter for the Supreme Court eventually.

    • Thanks for the comment, Ray, but Nice 1 and 2 were essentially the same, as was the divorce amendment. Bells and whistles may have been added but there was no difference in substance. There is nothing to stop the Government putting Lisbon to a vote again, no doubt with a few ancillary embellishments and reassurances on such issues as neutrality, taxation, etc., to make it more acceptable to the electorate. They don’t need a mandate, Dan, although they will be very reluctant to face the voters on the issue a second time. And the only way it will become an issue in the local and European elections is if there is a substantial number of anti-Lisbon candidates, particularly from the Libertas group. Deaglán

    • Dan Sullivan says:

      Deaglán, I admit they don’t legally need a mandate but I think politically they need the cover of one. Otherwise, people who voted Yes to toe the party line are just going to stay home. They had such a mandate for Nice 2.

    • I don’t understand, Dan. What mandate was there for Nice 2 which does not exist for Lisbon 2? Deaglán

    • Dan Sullivan says:

      There was a general election between Nice 1 and 2 and in that election in 2002 the major parties all committed themselves to holding a 2nd referendum. They got the votes and so had a mandate to hold one.

    • I was involved in covering that election and for the life of me cannot remember that aspect, although I will take your word that it was the case. Six years is a long time. But I doubt if even one voter made their choice on the basis of that undertaking. The fact is the Government can hold another referrendum if it wants to and probably will. Getting the desired result is another matter entirely. Prospects do not look good at this point in time. Deaglán

    • Ray Dollard says:

      In reply to Fear Bolg’s comment, try this. The recent proposal put to the people was to ratify the Lisbon Treaty – specifically that treaty signed in Lisbon on 13/12/2007. Under Art 47.2 of the Constitution, the people ‘vetoed’ that proposal. The same proposal, having being vetoed, cannot be put to the people again.

    • Dan Sullivan says:

      The commitments were just there to give them political cover for Nice 2. Given the attention some voters give to election promises, I’m surprised that one or two of the parties aren’t tempted to slip in a little something extra just to take the mick. Oh hang on didn’t FF promise to end waiting lists completely within 2 years in 2002, yep that must have been one of those. I’m waiting for someone to claim they’ve got a secret plan to fight inflation.

    • Deaglán says:

      Based on the report by my colleague Stephen Collins in today’s Irish Times, it looks like the Government is going for the Danish model of re-running the referendum with various opt-outs. This was hinted at some time back by Micheál Martin at the European Affairs committee. Presumably the referendum will be held lat next year, if Cowen can keep Europe off his back that long. Deaglá

    • Dan Sullivan says:

      Lanigan’s referendum! She opts out, then I opted in again.

      Three long years we spent up in Dublin,
      Three long years to learn nothing at all,
      Three long years we spent up in Dublin,
      Learning new opts for Lanigan’s Ball.

      She opted out and I opted in again,
      I opted out and she opted in again,
      She opted out and I opted in again,
      Learning new opt-outs for Lanigan’s Ball.

    • Deaglán says:

      Knocks the Ode to Joy into a cocked hat Dan. Deaglán

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