Friday, 5 September 2008

A plan to circumvent the Irish "no" vote begins to emerge

All eyes continue to be on Ireland, where the government has proposed the idea of a second referendum on the Lisbon Treaty, despite the resounding ‘No’ vote delivered on 12 June.

After strongly denying any prospect of a second Irish referendum on the Lisbon Treaty back in July, the Irish Europe Minister Dick Roche has now publicly announced that a second vote would be “appropriate”. (Newstalk Radio, 22 July, and Irish Independent, 25 August)

Prime Minister Brian Cowen also admitted that a second referendum will be considered. However, it was suggested that people might only be allowed a second vote on parts of the Treaty, with much of the text just being pushed through the Irish Parliament.

A report in the Irish Independent stated that: “It is possible for the Dail to pass some parts of the treaty without a public vote, and it is understood that Mr Cowen sees this course of action as an option.” (2 September)

Meanwhile, according to the Irish Times, Irish officials met with their Danish counterparts last month to get advice on how Ireland could opt out of crucial aspects of the Lisbon Treaty – like the opt outs the Danes adopted following the “no” to the Maastricht Treaty in a referendum.

In 1992, the Danish government responded by coming up with a proposal to “opt out” of four key areas of the Maastricht Treaty – the euro, defence, justice, and common EU citizenship. The proposals were then approved in a second Danish referendum in 1993. (Irish Times, 28 August)

Several pro-Treaty commentators have questioned in the media why a referendum was held in Ireland in the first place. They argue that only some of the elements in the Treaty are constitutional changes and therefore legally require a referendum.

So it seems likely that in October Ireland will be offered the option of “opt outs” from the most sensitive, constitutional elements – for example, the provisions on an EU defence, Home Affairs, and the Charter of Fundamental Rights.

The Irish government will then try to push the rest of the Treaty through the Dail without a referendum, and will allow a second referendum only on the question of whether Ireland should opt out of the most controversial elements.

In this way, even if the second Irish referendum on the opt-outs returns a ‘No’ vote, the Treaty will still come into effect for all other member states.

Legally such a process could be achieved in one of two ways. The contents of the Lisbon Treaty could be inserted into the forthcoming Croatian Accession Treaty (expected at the end of 2009). The text would be the same as the Lisbon Treaty, but would also make provisions for Ireland’s opt outs. This would be legal, but would require the other 26 member states to re-ratify the new Treaty. This would be unpopular in Britain, as the Government would not want to push an unpopular Treaty through the Commons just before a general election.

The alternative is to bend the law. The current problem for supporters of the Treaty is that giving Ireland legally-binding opt outs from Lisbon should require a change to the treaties, which in turn would have to be ratified by all other member states. However, the law could be fudged, as it was after the Danish “no” in 1992. Britain’s former “ambassador” to the EU, Sir Stephen Wall, recalls in his recent memoirs that EU leaders simply invented a whole new type of legal arrangement to get round the “problem”:

“Member states rallied round the plan that had been in gestation for some weeks, of providing an interpretation of the treaty which would, as the Council’s legal adviser, the clever and inventive Frenchman Jean Claude Piris, advised the heads, clarify the treaty provisions for Denmark.”

“It was an intergovernmental act with binding legal consequences. However that did not mean, either in national law, community law, or constitutional law that it needed to be ratified.”

While neither of these options are ideal from the point of view of the pro-Lisbon camp, they are probably the only realistic ways to “get round” the no vote. There seems little prospect that a second referendum on the same treaty would be won. A new poll for the Irish Sunday Independent found that people would vote no by 44 to 42 percent if a second referendum were held. The poll also showed a sharp drop in Brian Cowen’s popularity, down 34 points since he was elected in May.

The main pro-Lisbon opposition parties in Ireland have also reacted angrily to suggestions of a second referendum. A spokeswoman for Fine Gael said that talk of a second referendum only served to highlight the “arrogance and lack of respect” the government has for voters. A spokesman for the Labour Party said comments about a second referendum were “not helpful” and that there can be no question of simply putting the same proposition to the people again. (Irish Independent, 28 August)

Meanwhile, the European Commission has been rolling the pitch for a return to the Treaty. The Commission’s office in Dublin last week issued a briefing to journalists blaming the “British media” for the Irish no vote, and complaining that it could not control “anti-establishment” bloggers. In a separate report this week the European Parliament called for EU regulation of blogs (see the Open Europe blog for more details).

This article first appeared on Open Europe