by Frank Schnittger
Wed Aug 27th, 2008 at 10:34:09 PM EST
The Irish Independent, the largest circulation daily in Ireland has published my Letter to the Editor which seeks to map out a way forward on the Lisbon Treaty rejection conundrum. The letter is written with "swing voters" in mind and thus repeats, though not necessarily endorses, a lot of popular conceptions about the Treaty which gave rise to the no vote.
Give Lisbon to Supreme Court - Letters, Opinion - Independent.ie
Minister Dick Roche's call for a re-run of the Lisbon referendum risks inflaming anti-EU sentiment in Ireland still further, as it underlines the perceived elitist and undemocratic nature of the European project in the eyes of many 'No' voters.
These could well be joined by many 'Yes' voters from the last referendum if an increasingly embattled and unpopular government is not seen to have dealt with the issues arising from the last vote effectively.
These issues include:
1. An amendment to the treaty enabling the restoration of a permanent EU Commissioner from each member state.
2. A series of protocols clarifying the impact, if any, of the treaty on Ireland's neutrality, commitments to joint EU defence and security cooperation, social/moral legislation such as abortion and civil partnerships, and the concerns on religious freedom as expressed by Cardinal Brady.
3. A further road map to address the perceived "democratic deficit" within the EU, including increased powers for the directly elected European Parliament and a clarification of the role of the new post of President of the European Council as defined in the treaty.
4. If necessary, the Government should seek an authoritative ruling from the Supreme Court as to precisely which aspects of the Lisbon Treaty change our Constitution, and thus require ratification by referendum -- so that all the disinformation, confusion and lack of clarity which characterised the last referendum can be resolved. The people deserve to be given a clear choice, not some woolly and confusing document capable of multiple interpretations.
Let the highest Constitutional authority in the land -- the Supreme Court -- clarify precisely what impact the treaty has on our Constitution, and then let the people decide whether they want it or not.
Two things have happened recently in the ongoing debate in Ireland.
- Firstly, the Minister for EU Affairs, Dick Roche's "personal view" that a second referendum may be required has been met with a predictable chorus of complaints along the lines of "which part of NO does he not understand?" There is a very real danger that a few people who voted YES last time around would vote no in any repeat referendum in protest at a perceived bullying by the political establishment to do the bidding of a perceived undemocratic political elite.
- Secondly, Cardinal Brady, the most senior Catholic churchman in Ireland has suggested that part of the rejection of the Lisbon Treaty may have been caused by a sense that the European Project is being increasingly driven by secular values, hostile to Christianity, and thus a cause of alienation between the EU and many of its citizens.
This has drawn a hostile response from many correspondents who argue that the European project is unavoidably secular and pluralistic and cannot embody the doctrinal beliefs of any one religious tradition. Nevertheless, many traditional Catholics do see the EU becoming more and more of a political (as opposed to an economic) Union, and expect their polity to take their religious views on board. My LTE seeks to acknowledge the reality of some of these concerns but also to narrow the debate to a very few specifics:
- The one Commissioner per country issue which probably can be renegotiated without unraveling the whole Treaty ratification process in other countries.
- Some protocols (specific to Ireland) which rule out many of the more outlandish interpretations placed on the Treaty by NO campaigners.
- Acknowledging that there is a major concern about the democratic deficit within the EU (which may not be entirely addressed by the Lisbon Treaty) and agreeing to set out a process by which that perceived deficit may be addressed in the future. This will require agreement by the European Council to a road map for future further democratisation of the EU - in as yet not very precisely specified ways.
- But most importantly, to narrow the scope of any future referendum to those specific aspects which change the Constitution of Ireland, and which thus require a specific referendum for those changes to be ratified.
Para. 4 above is the most problematic. The mechanism for doing so would be for the Government to pass parliamentary legislation ratifying the Treaty and then ask the President to refer the legislation to the Supreme Court to test its constitutionality prior to signature. Such a referral is not without precedent and has the effect of rendering the legislation immune to subsequent constitutional challenge if it is found to be constitutional.
Arguably this should have been done in the first place, but it is very difficult to do so now, because the Government will be accused of attempting to bypass the will of the people. The Government will have to be very explicit that it is adopting this procedure only as a means of obtaining an authoritative judgment on what the impact of the Lisbon Treaty actually is, and thus dispel much of the scaremongering and extraneous issues which characterized the first Referendum campaign.
The rationale for this process could run somewhat as follows:
- The detailed opinion survey research the Government has commissioned to find out why people voted No will find, surprise, surprise, that many people felt they didn't fully understand the Treaty and others voted against it for contradictory reasons. Thus much greater clarity is needed to enable the people to make an informed decision on the Treaty.
- The Electoral Commission which was supposed to provide people with an authoritative interpretation of the Treaty clearly didn't dispel many concerns and much confusion as to what the Treaty actually meant.
- Under the Constitution, the Supreme Court is the final arbiter of what the Law or a Treaty means, and so the Supreme Court should be asked to decide precisely what impact, if any, the Treaty has on the Constitution, and thus what constitutional amendment would be required to render it constitutional.
- Any subsequent referendum would be limited to whatever specific amendment the Supreme Court rules is required to render the Treaty Constitutional - and would not therefor be anything like the last referendum, which asked the People to approve the Treaty as a whole. The Government can therefore claim that the people are not being asked to vote on the same question a second time and that the second vote is on an altogether more limited, clearer, and more precisely worded amendment.
So what are the pitfalls in this strategy? Firstly, the Government called a Referendum the first time around because the Attorney General (its Principal Legal Adviser) advised that the Treaty would e vulnerable to constitutional challenge if it were ratified without one. The precise nature of his legal advice has not been published, but it is possible that he was being over cautious, and that the Supreme Court might find that there was no need for a referendum in the first place. The President could then simply sign the legislation, and the Treaty will have been ratified by parliamentary vote.
This is probably a nightmare scenario for the Cowen Government, because then they truly can be accused of bypassing the popular will by ratifying the Treaty by Parliament against the expressed will of the people. The Government (and any allied opposition parties) could expect to lose a lot of seats to Sinn Fein et al at the next general (and European) elections for flouting the popular will.
However let us suppose, for the moment, that the Attorney General was correct, and that the Supreme Court finds, perhaps on some rather arcane and technical point, that the Treaty does require a very specific Constitutional amendment for it to be ratified.
The referendum campaign can then be confined to that specific issue and all other issues ruled irrelevant to the debate. Or can they? My view is that the various NO parties and campaign groups will continue to voice more generalised political objections to the Treaty and the European project as a whole.
This is where Cowen then turns the vote into a referendum on our membership of the EU as a whole. Do we want to be part of the project or don't we? If he can succeed in turning a second vote into a plebiscite on our continued membership of the "inner circle" of the EU project he will still win.
However much the NO side will whinge and whine that they are really pro-EU (many are not) and that they are only opposing specific negative developments within the EU, they will not be able to make that case based on a limited technical amendment to the Constitution. That amendment will have to be argued on its merits.
There is no doubt that, whatever way this cookie crumbles, Cowen and some of the opposition parties (who supported the yes VOTE) are going to take an electoral hit for the mess we now find ourselves in. However Cowen can justifiably claim that a major reason for the defeat of the referendum was that there was genuine confusion and uncertainty about its precise meaning. He can hardly be blamed for taking steps to clarify its precise impact on our Constitution in the most authoritative manner possible.
Those who oppose the Treaty for political reason - regardless of its constitutional impact - and against the expressed will of 26 other Member Governments - will then be exposed as anti-EU project per se, and on that basis they cannot win in Ireland - whatever Cardinal Brady, Sinn Fein, American financed neo-cons, and Tory Eurosceptics might say.
The question is whether Cowen will have the courage to take this approach. He is cautious and conservative by nature and has much to lose - he was unanimously elected leader of the dominant ruling party in Ireland. No matter what happens, his political honeymoon as Taoiseach has come to an abrupt end.