Was holding referendum on Lisbon Treaty really necessary?
OPINION:No one was clear why the Government held a referendum in the first place, writes Ruth Barrington
ONE QUESTION that has not been answered in the discussion following the referendum on the Lisbon Treaty is why was a referendum necessary in the first place. Or more precisely, what aspects of the Lisbon Treaty conflicted with the provisions of the Constitution to the extent that a referendum was necessary?
In its judgment on the challenge made by Raymond Crotty to the Single European Act, the Supreme Count found that one element of that treaty was not covered by the terms of constitutional amendment governing Ireland's membership of the EU. That element was the agreement to develop a common foreign policy. So at least people knew when voting in the referendum on the Single European Act why a referendum was necessary. In that same judgment, the Supreme Court set down a marker as to whether or not a new treaty required a referendum. The test is whether there is a change to the purpose and objectives of the European Union.
Does the Lisbon Treaty represent a change to the purpose and objectives of the European Union?
The Danes, the most scrupulous watchdogs of national sovereignty, found after careful examination that the treaty did not involve any additional transfer of sovereignty to the union and therefore no referendum was necessary. A number of other member states came to the same conclusion.
What analysis did the Government make?
If it did receive advice on the constitutionality of the treaty, it was not shared with the
Irish people. Instead, it seems to have followed the "safe" option of holding a referendum, even though no one was clear why a referendum was necessary in the first place.
Although the conventional wisdom holds that a referendum is required to ratify all EU treaties in Ireland, this is not the case. The treaties enlarging the EU, with the exception of our own in 1972, have been ratified through the Oireachtas. It is ironic that radical treaties that have expanded democracy to formerly totalitarian states can be ratified by the Oireachtas but rules of procedure treaties, such as Nice and Lisbon, which update and regulate our relationships within the union, are ratified by referendum.
We now know the dangers for Ireland and our partners in Europe of being the only country to hold a referendum on a highly technical treaty such as Lisbon.
The assumption that the treaty requires a referendum because of the Crotty judgment, coupled with the constraints of McKenna judgment on support for both sides of the argument, has led to unforeseen consequences for representative democracy and how we protect our vital national interests.
A referendum provides anti-European groups with a platform to campaign repeatedly against the European Union, even though these groups have less than 10 per cent of the seats in the Dáil and can currently call on the support of no more than six TDs.
While in a democracy one should never discount minority views, the outcome of the Lisbon referendum does raise questions about Ireland's constitutional status as a representative democracy. In addition, some interest groups have taken advantage of referendum campaigns to lever concessions from the Government on EU policy to their advantage. Éamon de Valera, the prime architect of our Constitution, had a healthy scepticism of special interests and was a strong believer in representative democracy. The Constitution he designed limits the use of referendums. It is hard to envisage that the Supreme Court intended through its judgments to transform Ireland into a plebiscitory democracy on the model of Switzerland.
The use of the referendum, even where the reason for it is not clear, gives the impression that our European partners can be persuaded to move as slowly or as quickly as public opinion in Ireland. We were assured by the No campaigners, for example, that rejection of the treaty would lead to its renegotiation. As a small country with 1 per cent of the EU population that has achieved remarkable results through skilful diplomacy and negotiation, we should be wary of issuing ultimatums or of derailing the hard-won consensus of our 26 partners.
Another consequence of the use of the referendum in situations where it is not clear why people are voting is a growing perception across Europe that the Irish are disengaging from the European Union, despite the ongoing support of the Irish public for the EU as measured by opinion polls over many years. This perception undermines what has been a vital national interest of Ireland for a generation, namely to remain at the heart of the European enterprise.
Ireland has over the last decade become increasingly marginalised within the EU. In addition to our difficulties with a common defence, we have sought a partial opt-out of the justice areas of the EU, we are non-members of the Schengen Agreement and it appears that we will be opting out of some of the provisions of the proposed common policy on migration. We are perceived to be ever more closely aligned to the UK on economic and social issues within the EU.
It is regrettable that Ireland's membership of the EU, so long a vital national interest, is becoming increasingly governed by legal concerns rather than being treated as a central political objective of the country. We are now facing the steepest economic downturn since the 1980s at the same time Ireland faces great uncertainty over its role in Europe and internationally. This uncertainty is likely to make this recession more difficult to manage. Those who represent Ireland's interest in the EU - politicians, diplomats and public servants - are working hard to preserve Ireland's position within the EU. The Lisbon referendum result puts them in an unenviable position. Not only have they to deal with the fallout from a negative poll result, but they cannot explain why the poll was required in the first place.
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 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 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. We would at least be clearer about why we are voting.
Ruth Barrington is co-editor with Jim Dooge of A Vital National Interest: Ireland in Europe 1973-1998 (IPA). She is a member of The Irish Times Trust and the board of The Irish Times Limited.