OPINION:A mixture of a referendum, Oireachtas votes and opt-outs might provide a solution to the Lisbon Treaty problems, writes Eugene Regan
THOSE WHO interface with Europe at the political level fully appreciate the fallout from the Irish No vote on the Lisbon Treaty and the need to act. Those who voted No will not admit that we have a problem. The implications for this country of that No vote are not readily apparent and to date there have been no perceptible negative consequences. But the reason for this is that the EU expects the Irish Government to resolve the current impasse.
What has become apparent is that Ireland and its referendum process is now an obstacle to the standard method of EU integration, which involves periodic amendments of the existing treaties. If this proves to be a continuing obstacle Ireland will be seen as responsible for the fragmentation of the EU. This may involve further development taking place through enhanced co-operation within the EU or through new spheres of activity outside the EU framework. Alternatively, integration may proceed without Ireland.
The argument of the No campaign has been that there should be a renegotiation. This can take the form of renegotiation of the treaty itself or the extent of Ireland's acceptance of the treaty. As to whether a wholesale renegotiation is likely, the continuing process of ratification by other members states would seem to suggest that it is not.
Lisbon would, in fact, facilitate one important change: that of one commissioner per member state. As regards renegotiating the extent of Ireland's acceptance of Lisbon, other member states are likely to be accommodating. Clearly, assurances in the form of a declaration on such issues as abortion, tax and neutrality would be forthcoming, as would agreement on requests by Ireland for opt-outs from Lisbon.
The question is where we go from here. As we move tentatively towards a second referendum on Lisbon, although no one yet admits it is on the way, we should consider how that referendum should be conducted and begin by re-examining our referendum process.
In doing so we need to address two issues. Firstly, referendums in Ireland are for the sole purpose of amending the Constitution, not for ratifying international treaties per se. Secondly, one of the main reasons Lisbon was rejected was that it was simply too complex to understand.
Bearing in mind that the Oireachtas, under articles 29.5 and 6 of the Constitution, has the right to ratify an international treaty that does not interfere or breach the Constitution, I believe we need to identify those elements of Lisbon which raise constitutional issues. We must then examine whether or not any such constitutional element is already covered by previous Irish referendums.
All constitutional issues which arise and are not already covered by the constitutional licence given to the Oireachtas by previous referendums approving membership of and changes to the European Community and the European Union, should be the subject of specific questions in any new referendum. If approval were not forthcoming on these specific questions, then the Oireachtas would seek to exercise opt-outs in those areas and could proceed to ratify Lisbon without those elements forming part of the treaty being ratified by Ireland.
This would avoid the need to have a referendum on the entire 300-page text of the Lisbon Treaty. Instead, any referendum would now be confined solely to questions concerning transfers of competencies and issues of sovereignty, which fall to the people to decide under the Constitution. Such issues may include the charter for fundamental rights, the solidarity clause, transfer of certain matters to qualified majority voting and the inclusion of new competencies such as energy security, climate change and tourism.
This approach would prevent the diplomatic nightmare of Ireland blocking improvements in the EU institutions and measures contained in the treaty to which 26 other member states are committed.
At the same time, Ireland would remain a fully functioning member of the EU while the choices of the Irish people in the referendum would be respected.
In the long term, this would also have the advantage of showing our EU partners that not every new issue needs to be put to the Irish people in a referendum and, therefore, they need not exclude Ireland from future discussions on integration. Nor need they discard a form of integration which has served all countries, both large a small, very well to date: integration by grand treaty by unanimous agreement.
Given the problem of putting a full treaty to the Irish people, is it not the better approach to put specific propositions which are intelligible and reasonable? A referendum on specific propositions would make for a more meaningful referendum debate.
Accordingly, in order to regularise the situation in relation to Lisbon, it is not a question of whether the Oireachtas should ratify the treaty or whether the treaty should once again be put to the people in a referendum. It is not an either-or situation. The Oireachtas should exercise its prerogative in ratifying that part of the Lisbon Treaty which does not involve a material change to the Constitution. The people should exercise their constitutional prerogative in deciding on any changes to the Constitution to which the Lisbon Treaty gives rise.
This approach may have to be tested by the courts, but it would appear to offer our democracy the opportunity for a more meaningful referendum debate; respect for the constitutional framework for deciding matters of this kind; and the means of securing our role in Europe, even if that entails opt-outs from significant tracts of the European integration process.
It involves simplification of the referendum procedure by clarifying the decisions on the Constitution arising from Lisbon which the Irish people have to decide. Furthermore, it provides a procedure whereby, if the people reject changes in the Constitution
necessitated by Lisbon, the Government can still proceed to ratify the treaty by excluding those parts which the people have rejected.
What is proposed is a mechanism to deal with the situation we are faced with at present, and may face again after a second referendum, where a vote against the Lisbon Treaty stymies our membership of the European Union.
• Senator Eugene Regan of Fine Gael was elected to the Seanad on the agricultural panel. This article is linked to an address he gave to the recent Humbert Summer School discussion on the Lisbon Treaty referendum