The Government's proposed wording for the referendum on the Amsterdam Treaty has sparked criticism from opposition parties and seems destined to generate justifiable fears and concern that it is too permissive. The proposed amendment would enable the Government to ratify the treaty, but also to "exercise the options or discretions" it introduces. That is a very broad sweep indeed.
In the absence of a positive list as to what these "options or discretions" might be, including legal certainty that they would not include future integration into defence arrangements which would end Ireland's military neutrality, the proposed wording could cause more people to vote against. The Government's decision is based on advice from the Attorney General's office - which should be published - that the rights to opt in to the Schengen Treaty abolishing internal EU border controls and the provisions for free movement of peoples, together with the new chapter on closer co-operation or flexibility, necessitate such a permissive wording. Otherwise such supplementary decisions would be subject to continuing constitutional challenge.
Government sources insist that only Schengen-type issues and flexibility options and discretions are covered by their wording and that it does not cover defence and security. But the question is moot according to other legal sources. They include advisers to leaders of the Labour Party and Democratic Left, who helped to negotiate the treaty and presumably support it, but have expressed concern that it is too permissive. The onus will be very much on the Government when the matter is debated in the Oireachtas next week to demonstrate with legal certainty that such options or discretions do not apply to the area of defence and are otherwise capable of clearer definition. Their willingness to consult opposition parties is welcome.
They could proceed in a number of ways. They might argue, for example, that since the treaty specifies that a decision to integrate the European Union with the Western European Union, thereby creating an obligation of mutual defence, would be taken by the European Council (the summit of heads of state or government where decision-making is by unanimity) options or discretions are not applicable; they are relevant only to areas where fewer than the full number of member-states proceed to take a new initiative. The new treaty's flexibility clauses do not apply in the field of foreign policy and defence.
These are arcane but significant points, which might still be open to legal challenge. They would be reinforced by a simple addition to the proposed wording to say the options and discretions do not apply to defence commitments. The question could be subdivided into two votes. Or only the treaty ratification question could be posed, leaving future possible constitutional challenges to take their chances.
The Government makes the strong case that solemn political undertakings to refer any decision on military neutrality to referendum have been offered on behalf of all conceivable coalitions of Irish political parties. They might have to be reinforced by a joint statement to that effect. Referendums are the property of the people. Many of them are not willing to trust governments with such an important matter as neutrality, which is not constitutionally entrenched, or, indeed, to sign a blank cheque on future ill or nondefined options and discretions.