EUROPEAN DIARY:Any new referendum on Lisbon would likely be cast as a proxy vote on the bailout package, writes ARTHUR BEESLEY
ALL THE signs suggest the Government will not call a referendum on a looming revision of the Lisbon Treaty to facilitate the creation of a permanent bailout fund for distressed euro zone countries. Still, the ultimate decision may rest with the courts.
Only one year and 14 days have passed since the treaty was enacted, an occasion marked more with a collective sigh of relief than by fanfare.
After prolonged and divisive debate, the hope then was that institutional questions had been settled for many years to come. Such illusions were shattered by the sovereign debt crisis.
Two countervailing forces are at work in the preparation of the amendment, which will add a single paragraph to the article dealing with the operation of the euro. The first is a German push for a measure strong enough to appease its activist constitutional court, whose judges are considering a challenge to the temporary bailout scheme from which Ireland is drawing aid.
The second is the desire for something sufficiently modest to avert the prospect of another European referendum in Ireland or any other country.
At the outset of the process, therefore, EU leaders resolved to deploy a change which would explicitly empower them to rescue a country while not necessarily increasing the competences of the union itself.
From an Irish perspective this is hugely significant, for the Crotty judgment of the Supreme Court holds that any significant transfer of power to the EU must be referred to the people.
The test does not rest on the procedure used to give effect to the change, although the vehicle they will deploy was hand-picked to increase the chances of avoiding a referendum.
The “simplified revision procedure” in the Lisbon text, which can be used without convening an inter-governmental conference, is specifically reserved for measures which do not increases the powers of the EU. A short report for EU leaders by European Council president Herman Van Rompuy says “all delegations” agree the change should be executed via this procedure.
“This requires that the revision proposed . . . does not increase the competences conferred on the union,” it says. “Consequently, the mechanism should be established through an inter-governmental arrangement; therefore, operations of the mechanism cannot create liabilities for the EU budget nor for member states not participating in them.”
These are crucial conditions. For one thing, an inter- governmental arrangement would operate outside the ambit of the EU bodies. As such it would not increase the powers of the institutions themselves. For another, the avoidance of any new liabilities for the EU and its member states is specified to ensure that aid is offered only by way of loans.
This is required because the EU’s infamous “no-bailout” clause remains intact in the treaty, breached in principle in the interventions that led to the Greek rescue but not by the letter.
In a treaty of abundant convolution, the proposed amendment seems straightforward enough.
“The Member States whose currency is the euro may establish a stability mechanism to safeguard the stability of the euro area as a whole,” it says. “The granting of financial assistance under the mechanism will be made subject to strict conditionality.”
For good measure, Van Rompuy notes the commission’s part in the temporary bailout scheme should be brought to an end when the permanent mechanism is established in 2013.
This has obvious resonance as any system in which the commission could permanently provide rescue aid would certainly increase its powers.
As with the Irish rescue plan, however, both the commission and the European Central Bank would continue to have a role in the development and monitoring of aid programmes.
Quite how all this plays out in Ireland remains to be seen. Given its bruising experience in the first Lisbon and Nice referendums, it is obvious that the Government is out to avoid another European vote. This is doubly so in the light of the stringent conditions attached to the EU-IMF rescue plan, with any new referendum on Lisbon likely to be cast as a proxy vote on the aid package.
Dublin’s formal position is that it will consult the Attorney General on the appropriate ratification process. The expectation, however, is that it will find no grounds to call for a vote. After all, achieving space to make that very argument was its core objective in the negotiation.
That, however, doesn’t preclude an attempt in the courts to block such a manoeuvre, which can, at this point, be seen as an inevitability. This is all the more so given the pungency of previous debates around the Lisbon pact and the fact that all legal texts, no matter how small, tend to invite challenge.
If the very decision to revise the treaty reflects German judicial power, the Irish judiciary may yet have an important say on the matter. The final text and the revision procedure will be agreed by EU leaders at their summit on Thursday and Friday, but that’s only the first step.