EU states made major concession

OPINION: The Government may obtain legally watertight guarantees on the Lisbon Treaty for issues that do not, in reality, exist…

OPINION:The Government may obtain legally watertight guarantees on the Lisbon Treaty for issues that do not, in reality, exist, writes Gavin Barrett

THE CONCLUSIONS of last week's European Council meeting in Brussels had not even been reached - or the announcement that there would be another referendum made - before the opening salvoes of debate were fired in an effort to determine the accepted narrative in the next Lisbon Treaty referendum.

The No campaign was first into the breach in this regard: without bothering to wait to see what had been agreed, it accused Brian Cowen's Government of being willing to accept guarantees supposedly "not worth the paper they are written on".

Others have demurred. Former European Parliament president Pat Cox described the deal secured by the Government as involving "major compromise" by our European partners and showing their "willingness. . . to legally guarantee their response to Irish sensitivities", as he put it in Friday's Irish Times.


Minister for Foreign Affairs Micheál Martin has argued that the decision of the heads of government was "a very significant achievement for our country", "an important outline agreement" and "a positive response to the various concerns about the treaty that had shaped the outcome of our referendum" (these pages, yesterday.)

Which of the two accounts is correct?

A prerequisite to understanding what the Government brought home on Friday is understanding what it did not.

There were only ever four possible imaginable reactions to an Irish refusal to ratify the Lisbon Treaty: (a) renegotiation; (b) a coalition of member-states opting to go ahead in the short, medium or long term and leaving us behind; (c) the treaty's partial or whole abandonment, or (d) a renewed Irish attempt at ratification.

Sinn Féin's demands for renegotiation asked the impossible of the Irish Government, however. The other member states simply do not want to renegotiate - seeing it as their democratic choice not to do so, not as some kind of "bullying" of Ireland.

These states know perfectly well that renegotiation would at best probably merely produce the same basic treaty deal for a third time - and at worst would reopen a Pandora's box of national interests. It would in any case be impossible to get a renegotiated treaty ratified should a Conservative government (who would ratify nothing) come to power in the UK in 2010 - and there is also the disincentive that the huge effort involved in renegotiation might well be rewarded by another No vote in a referendum.

Of the other options, (b) - a coalition of the willing integrating further in some manner or form and leaving Ireland behind - is a nightmare option for Ireland. Even (c) - partial abandonment of the Lisbon reforms at Ireland's behest - would be a terrible setback for an organisation which has been of incalculable benefit to Ireland, and one for which we would take the blame.

Option (d) - a renewed attempt at ratification - remains.

Before the Lisbon Treaty was put to referendum a second time, however, the Government's view has clearly been that a changed context should be put in place at both European level and domestic level which would demonstrate that the concerns of the Irish electorate had been listened to (just as was the case when the Nice Treaty was put to referendum a second time).

Friday's European Council conclusions constitute the outcome of negotiations between Ireland and its partner states on the changed European context in which a new referendum could take place.

They represent an outline agreement only, however, anticipating "satisfactory completion of the detailed follow-on work by mid-2009". This will probably involve another European Council at the end of the Czech EU presidency, much like the December 1992 Edinburgh Summit held prior to the second (successful) Danish referendum on the Maastricht Treaty.

Important details will remain to be filled there, and further efforts may be made to ice the legal and political cake now being offered to the Irish electorate as a kind of dessert to make the Lisbon Treaty more appetising in a new referendum.

Nonetheless, the basic recipe will be the contents of Friday's European Council conclusions. There are two main ingredients. The first is the agreement of the European Council that provided the Lisbon Treaty enters into force, "a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State".

This agreement involves no alteration to the Lisbon Treaty itself - which was always a better deal than the existing treaties in this respect. It does, however, involve a major - and in some cases a highly reluctant - change of direction by the other member states. It is this element of the deal that Pat Cox termed a major compromise

The second ingredient in the deal is the agreement by all the member-states that, provided Ireland commits itself to seeking ratification of the Treaty of Lisbon by the end of October 2009, "necessary legal guarantees" will be provided that the Treaty of Lisbon will not affect EU competencies concerning taxation, Ireland's neutrality or our Constitution's provisions regarding the right to life, education and the family.

The form that these guarantees take must be settled to Ireland's satisfaction. There seem to be at least two broad possibilities here: (a) an Edinburgh-style decision (a treaty between all EU member states binding in international law which does not, however, amend the founding treaties).

Its contents could be put in a protocol (which is equivalent to treaty provisions) as soon as another treaty comes along - probably the Croatian accession treaty (just as the contents of the Danish "decision" were in 1999).There is also the possibility of (b) political (non-legally binding) declarations which the member-states would, however, commit to turning into a protocol in due course.

Other options - pure declarations - may form elements of the ultimate package, but will not be the core, as they are seen as too easily decried by the No side as inadequate. The immediate attachment of protocols to the Lisbon Treaty itself seems to have been rejected by the other member states because it would involve reopening the politically sensitive ratification process now closed in 23 of them. The principal value of the guarantees will clearly be to calm whatever fears the Irish electorate have on matters such as taxation, abortion and neutrality.

The demands of the No campaign for legally binding guarantees should be judged in the light of the reality that the dangers which the Lisbon Treaty presents in relation to any of these issues are largely a figment of the No campaign's imagination.

Gavin Barrett is a senior lecturer in European law at the School of Law in University College Dublin