Legislative route may be best way to get around Lisbon

INSIDE POLITICS:An attempt to ratify the treaty in the Oireachtas would provoke furious controversy, but it may be the best choice of a bad lot, writes Stephen Collins.

PRESIDENT NICOLAS Sarkozy's suggestion that Ireland will have to vote again on the Lisbon Treaty has provoked indignation in Government circles and acted as a red rag to the range of anti-EU groups that campaigned for a No vote in last month's referendum. It has increased the terror among Ministers and Irish officials about what the flamboyant president of France is likely to say during his visit here on Monday.

The real problem, however, is not Sarkozy's intervention but the fact that the Government and the other parties that campaigned in favour of a Yes vote simply don't seem to know what to do. More than a month after the event, there is no evidence of any coherent response to the dilemma.

Buying time is the only strategy evident to date. That was fine for the EU summit a month ago, but it is already wearing thin. Unless the Taoiseach and his colleagues can devise a clear strategy by the time of the next EU summit in October they will have their hands forced by the impetuous Sarkozy.

The French president is supposed to be coming here to listen, but he is hardly likely to be much wiser after his short meeting with Yes and No campaigners in the French embassy. Hearing the anti-EU message from the horse's mouth may enlighten Sarkozy about the kind of forces the Government has to deal with as it gropes in the dark for a solution.

Sarkozy is determined to solve the Irish question before the end of the French presidency in December. The problem that has to be overcome can be stated quite simply.

Ireland voted No to Lisbon, but none of the other 26 EU countries has any intention of renegotiating the treaty, which cannot be implemented due to the Irish vote.

The EU external affairs commissioner, Benita Ferrero-Waldner, joined the debate yesterday by saying that Ireland should be "allowed to analyse and reflect" in order to "tell us what they must do" at the EU's next summit in October. "It's up to them to take a decision," she told a conference in Spain.

Her view of the issue as an Irish problem rather than an EU one reflects the consensus among our partners about where responsibility for solving it lies.

If the Taoiseach and his colleagues want to avoid having a solution imposed on them they will have to decide on a strategy by October. More importantly, they will have to demonstrate real political courage both in their dealings with our EU partners and in their willingness to take political risks at home. The future welfare of the country demands the kind of leadership that has not been in evidence for a long time.

The former taoiseach John Bruton, who is now the EU ambassador to the United States, has suggested that a second referendum is just one option. Another would be to break up the Lisbon Treaty and agree to implement the parts of the document that did not involve treaty change, with a referendum at some future date on the elements that did. "There are several options: all of them are difficult," said Bruton.

The paradox is that most, if not all, of the treaty could have been ratified by the Dáil and Seanad without a referendum. Last week EU expert Ruth Barrington argued in this newspaper that the Oireachtas could enact a Bill ratifying Lisbon on the understanding that the President might 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 required a constitutional amendment.

The same point was made by legal expert Charles Lysaght, who has pointed out that when delivering the Crotty judgment in 1987, the chief justice Tom Finlay found that the original referendum decision to join the European Communities, 1973 was also an authorisation to join in amendments of treaties "so long as such amendments did not alter the essential scope or objectives of the communities".

Most, if not all, of the Lisbon Treaty would qualify under this definition and could be ratified by the Oireachtas.

An attempt to go this route and avoid a second referendum would provoke a furious political controversy, but a majority of voters might well be relieved not to be bothered again by an argument they don't understand or want to understand.

The prevailing view in Government appears to be that the horse has bolted and there is no way of getting it back and going the legislative route. However, given the inevitable difficulties involved in trying to get a Yes vote the second time round, legislation may be the best choice of a bad lot.

If there is a second referendum it will only be carried if Brian Cowen puts his own political career on the line, possibly by making it clear that he will call a general election in the event of a No vote. That may be the only way of ensuring that Fianna Fáil supporters will be persuaded to vote Yes in sufficient numbers to carry the day.

A real problem for the Government is that the people who support the EU are far less vocal and aggressive in their views than those who oppose it. Over the years the No camps have taken several court actions designed to force the government of the day to hold referendums on EU issues and make it as difficult as possible for them to pass.

Maybe it is time that those who believe in Ireland's future at the heart of Europe adopted similar tactics and found a way to clarify the legal position once and for all by putting the Crotty judgment, and for that matter the McKenna judgment, to the ultimate test of a Supreme Court challenge.