OPINIONThe Lisbon referendum has been forced on us by the Supreme Court - not by political cowardice, writes Gavin Barrett
I FOUND much to agree with in the article by my UCD law school colleague Rossa Fanning (Opinion and Analysis, April 22nd) concerning the merits of holding a referendum on the Lisbon Treaty. There has been a near-complete failure to ask ourselves why the holding of a referendum has become a stimulus-response type reaction of Irish political culture to any significant EU treaty.
Fanning would have us believe that the reasons why we have a referendum are political rather than legal. However, the main reason for the referendum, it seems to me, is the very one which Fanning rejects - that Irish governments continue to find themselves boxed into a corner by the unfortunate Supreme Court decision in the 1987 Crotty case.
In principle, the Supreme Court's decision in that case - that a referendum is required wherever the "essential scope or objectives" of the existing structures of European integration are altered - was unobjectionable. The problem, however, was in the court's application of its own test.
In Crotty, the court held that the singularly inoffensive provisions of Title III of the Single European Act, requiring merely consultation with other member states in foreign policy matters of general interest, were enough to require a referendum.
This has shackled the Government to the obligation to hold a referendum when no other government in Europe feels it necessary.
But what if Ireland ratified the Treaty of Lisbon by vote of the Oireachtas and that treaty was subsequently held by the Supreme Court after the treaty came into force to have altered the "essential scope or objectives" of the EU?
The consequent invalidation of Irish ratification would have unthinkable consequences, not alone for Ireland but for the EU as a whole.
The prospect of such a scenario, however remote, means that no government can contemplate ratifying the Lisbon Treaty by Act of the Oireachtas.
Calling a referendum on the Lisbon Treaty is thus not buck-passing by politicians but the only sensible response to a Supreme Court decision which would in an ideal world have been long ago overruled or modified by the court itself. Whether calling a referendum is the most democratically-appropriate way to ratify the Lisbon Treaty is - as Fanning correctly suggests - debatable, to say the least. Certainly, none of our fellow member states seem to think so. They are not all dodging their electorates.
Having disagreed with Fanning's analysis of the problem, I can scarcely agree with his conclusion: the idea that the impending referendum deserves to be treated with "apathy".
The Constitution is the fundamental law of this State. Any alteration of its terms needs to be considered with appropriate regard. Furthermore, the stakes are high in the Lisbon Treaty referendum. In the balance are the results of seven years' difficult negotiations by states with a combined population of half a billion people.
These matters should not be regarded with indifference. It is to be hoped that every single entitled citizen will exercise his or her right to vote.
As a final note, it may be observed that the complexity of the Treaty of Lisbon is not a good reason to vote against it. Such an approach would mean that Ireland could never ratify any EU treaty since any agreement between 27 historically independent states is bound to be extremely complex.
The complexity of such a treaty may be a good argument for not having a referendum but we have been compelled to by our judiciary.
Gavin Barrett is a senior lecturer in European law at the school of law in University College Dublin