Is the Government asking us to write it a constitutional "blank cheque" in endorsing the Amsterdam Treaty? The wording of the referendum question is certainly unusually permissive and has already seen the beginnings of a parting of the ways between elements of the pro-Amsterdam coalition. Both Labour and Democratic Left want the wording changed or the question separated into two questions in order not to jeopardise the treaty vote.
The former PD chairman, Mr Michael McDowell, SC, expresses serious reservations and insists that the public must be given a "clear and unambiguous" indication of the scope of the amendment, "otherwise the discretion it gives the Government is a blank cheque".
"People should only accept any proposition when they clearly understand it and are fully satisfied that they favour it," he says.
And Fine Gael's spokesman on Foreign Affairs, Mr Gay Mitchell, although reserving his position on the wording for next week's Dail debate, accuses the Government of unnecessarily creating alarm through "outrageous mishandling" of the issue. The single question put to voters will consist of two parts: first they will be asked if they approve an 18th amendment to the Constitution to allow the State to "ratify the Treaty of Amsterdam amending the Treaty on European Union, the treaties establishing the European Communities and certain related Acts signed at Amsterdam on October 2nd, 1997".
Secondly the State is to be allowed to "exercise the options or discretions provided by the treaties". While previous European treaties were ratified by means of a formula akin to part one, the Government has been advised by the Attorney General, Mr David Byrne, that constitutional innovations in the Amsterdam Treaty make the second clause a requirement if Ireland is to avail of its full potential. For the first time the treaty provides a systematic framework by which, in the absence of unanimity, groups of member-states can go ahead with particular new projects using EU structures and facilities, subject to strictly defined rules.
These so-called "flexibility" provisions are seen as a way round the potential gridlock that vetoes cause, particularly in the context of enlargement. But with Britain now signed up to the Social Chapter, I can find no one in Brussels or Dublin to tell me when, if ever, these general provisions will be used. Ireland had been nervous during the negotiations that such provisions would create the possibility of the emergence of a two-tier EU and diplomats are determined to ensure that if that happens Ireland is always in the front rank and perceived as a team player.
But on a couple of issues Ireland is out of step with the bulk of her EU partners, most notably on defence and on both the free movement provisions of the treaty and the related incorporation of the Schengen agreement on passport-free travel.
In relation to defence, the treaty provides for the framing of a common defence "if the European Council so decides". Government sources insist that this provision cannot be considered an "option" in the terms of the referendum question, and insist that the question has been drafted on the basis of legal advice only to cover flexibility provisions and Schengen-type issues.
Senior legal sources say, however, that they have no doubt "options" would be defined by the courts more broadly.
Official sources claim that the concerns that are being expressed are mischievous and bear no relation to political realities.
On neutrality, they argue, the political guarantees are overwhelming: this Government and any conceivable alternative administration would be opposed to signing up to the creation of a defence union and can veto any such proposal under the new treaty.
That reassurance is reinforced by a guarantee that, should they decide to reverse their policy, no mutual defence guarantee would be entered into without a referendum - in effect, they say, a double-key lock.
What is more, despite pressure from countries like Belgium, Holland, Italy and Germany, to turn the EU into a defence union, opposition from NATO members Britain and Denmark, makes the prospect extremely unlikely in the foreseeable future. Yet, if that is the case, "No" campaigners argue, why not rule it out specifically by making it explicit in the second clause that it does not refer to potential defence commitments? In regard to freedom of movement and Schengen the treaty drafters effectively created a special form of flexibility provision which allowed Ireland and Britain to opt out because of their joint commitment to the common travel area and desire to keep external border controls. On these issues there is no double lock - indeed the Government is specifically seeking discretion from the electorate to sign up to all or part of this field of co-operation should it see fit.
Because of the common travel area, Ireland will not opt in to Schengen's main aim of the abolition of internal borders until Britain agrees. But both countries are given the treaty right to opt in to some or all of the so-called flanking measures which Schengen has created. To make the abolition of internal borders possible members have agreed to a huge range of administrative measures and police co-operation, and these may help the Government fight crime. They include much that would arguably have no constitutional implications for Ireland and therefore would not require the suggested special clause.
But there are elements of Schengen - so far yet to be negotiated - which will become Commission competences instead of national ones. There are also such potentially controversial issues as provisions which encourage member-states to reach bilateral agreements with their neighbours to allow the "hot pursuit" of criminals into their territory. The supply of data on citizens to the centralised database of the Schengen Information System has also become a sensitive issue in some countries, notably Denmark. The issue here is not whether the Government intends to sign up to such provisions - diplomats insist they have no plans to do so - but whether they should be given discretion to do so if they impinge on Irish constitutional provisions.
