Cowen's challenge is to resist too speedy a second referendum
ANALYSISWith Sarkozy anxious for clarity on Lisbon, the Taoiseach must time any second vote skilfully, writes Jamie Smyth,European Correspondent
WHEN TAOISEACH Brian Cowen meets French president Nicolas Sarkozy on Monday for talks on how to resolve the public's rejection of the Lisbon Treaty, he will have few answers. The Government faces a huge challenge to find a solution for its "Lisbon dilemma" with all the possible options fraught with real political risk.
Pressure from other EU capitals is already being brought to bear on Cowen. Despite pledging publicly to listen to the concerns of Irish voters since France took over the EU presidency, Sarkozy has privately been telling anyone who cares to listen that the Irish must solve the Lisbon problem by voting again.
He has also tried to lay down a deadline for the Government to ensure that it stages a second referendum early enough to allow EU states hold the European elections in June 2009 under the Lisbon rules.
French officials say he is anxious the elections do not become a referendum by proxy on the Lisbon Treaty. There is also a worry that a possible Conservative victory in a British election in late 2009 or 2010 could kill the treaty.
But Cowen will reject any attempt by Sarkozy to corral the Government into preparing for a spring referendum and repeat his plea for more time to study the options and crucially work out, if and how, a second vote can be won. A second referendum defeat could prove fatal for the Government and his leadership of Fianna Fáil. It would also plunge the EU into crisis and possibly call into question Ireland's EU membership.
Holding a referendum in March next year would be unpopular with party candidates in the European and local elections, who will fear the media platform handed to Sinn Féin and Libertas under the McKenna judgment. Persuading local party workers to come out and canvass on Lisbon so soon before an election would also be tricky, while holding a re-vote a few months after the treaty was rejected is politically difficult.
It took Ireland 16 months to come up with a formula to put the Nice Treaty back before the people in a referendum following its rejection in June 2001. Given that just 34 per cent of people turned out to vote on Nice the first time around, the Government could argue the low turnout merited a new referendum. It was also able to pinpoint the issue of neutrality as a key reason why people rejected the treaty, enabling it to craft a targeted response to meet voters' concerns and win the argument second time around.
The high turnout in the Lisbon referendum and the myriad of different reasons provided by voters for rejecting the treaty make staging an early re-vote much more difficult.
Yet the list of options for Cowen to consider over the summer to solve his "Lisbon dilemma" is a short one, and a referendum later in 2009 looks a more likely bet even if Sarkozy's recent comments have handed valuable ammunition to No campaigners.
Irish political and official sources in Dublin and Brussels acknowledge that the benefits of waiting until September/October 2009 are manifold. It gives time for the Government to study the reasons for the No vote, begin a dialogue with the public on Europe and prepare a better referendum campaign. For Cowen, it also removes the unpleasant prospect of Sinn Féin and Libertas being handed 50 per cent of all media coverage in a campaign just before the local and European elections in June.
Running the European elections on the basis of the Nice Treaty is not ideal for EU purists but it is certainly no disaster. And crucially, a successful autumn 2009 referendum would allow the Lisbon reforms to come into operation in time for the new European Commission to take office in late 2009, possibly on November 1st.
A key argument in an autumn referendum would hinge on the composition of the commission which, under Nice rules, could result in Ireland losing its representative. Under Lisbon, we could be guaranteed a commissioner. Opt-outs from the European Defence Agency, together with reassuring declarations on tax, abortion, neutrality etc could also form the basis of a new Lisbon package that may be acceptable to the public.
By next autumn, all 26 other EU states will probably have ratified the treaty leaving Ireland isolated and providing the electorate with an added reason to solve the "Lisbon dilemma". With a bit of luck even the Irish economy may have begun to recover, creating a much more positive political climate for a second referendum.
A final decision on a re-vote will be the prerogative of Cowen and not Sarkozy. If he doesn't feel he can win a referendum by the middle of next year, he may simply have to tell the 26 other EU leaders that Lisbon is dead and accept the inevitable political fallout on the European stage.
Such a decision would enrage the advocates of Lisbon in France and Germany and could prompt a multispeed Europe, with groups of states moving ahead on issues such as defence outside the EU framework or using a mechanism known as enhanced co-operation to move ahead in sensitive areas such as taxation.
This decision would prevent the nightmare scenario emerging for Ireland and the EU of a second No vote, which would catapult the union into the type of unprecedented crisis most EU leaders are desperate to avoid.
One controversial option the Government could consider is an idea floated by Fine Gael MEP Gay Mitchell. This would involve ratifying the core elements of the Lisbon Treaty - such as the double-majority voting system - through the Oireachtas rather than by referendum. The Bill could be referred by the President to the Supreme Court to check its constitutionality, while some controversial elements in Lisbon - in defence or foreign affairs - could be put before the people in an opt-in/opt-out referendum.
This type of legal manoeuvre would be fraught with legal and political risks. The courts could rule the Bill unconstitutional while No campaigners would argue that the will of the people was being ignored by politicians.
It is unlikely to appeal to Cowen who, like any other EU leader, has to make domestic politics his first priority. His only problem now is to make Sarkozy aware of this and keep him quiet until next year.