THE LISBON Treaty is a legal document of Byzantine complexity, stretching to some 272 pages that cannot, in the unlikely event that one was to attempt the task, be read as a stand-alone document, as much of its content is by way of amendment to earlier treaties.
I have yet to meet a single person who has read the entirety, and it is a safe bet that very few of the electorate will have attempted the task by the time that they are asked to approve it.
Irrespective of the merits of the treaty, with which this article is not concerned, requesting the electorate to vote upon something that they have not read, and in truth do not understand, is an exercise of dubious value.
Of the 27 member states of the European Union, only Ireland, it would appear, will hold a referendum to ratify the Lisbon Treaty.
All of the other 26 member states will ratify the treaty (if they do so at all) by parliamentary vote. Ireland is therefore an outlier in its approach. Nor is this a new development. Ireland was one of two member states to ratify Amsterdam, and the only one to ratify Nice, by referendum, and that only at the second time of asking.
It is perhaps surprising that our outlier status has been the subject of almost no meaningful public discussion or critical analysis. It is as if we all accepted some time ago that our practice of ratifying EU treaties by referendum was immutable and itself incapable of variation. This assumption, although almost never challenged, is based on two fictions, one legal and the other political.
The legal justification commonly offered is that the Constitution requires a referendum. That proposition is itself based on a gross and widespread misunderstanding of what the Supreme Court held in 1987 in a case brought by the late Raymond Crotty challenging the Government's proposed method of ratification of the Single European Act (SEA). The Supreme Court decision in Crotty is commonly thought to bar ratification of a treaty by statute. In fact, it does nothing of the sort.
Crotty in fact authorises the ratification of future treaties by statute provided that "such amendments do not alter the essential scope or objectives" of the existing EU. The only aspect of the Single European Act that the Supreme Court felt required constitutional amendment, and this only by a 3:2 majority, was Title III, as for the first time, it fettered the sovereignty of the state in foreign policy and affairs. Other aspects of the Single European Act, such as the introduction of a Court of First Instance, and changes to qualified majority voting rules on the European Council, were, the Supreme Court held, validly introduced by statute.
The true position therefore is not that a referendum is required to amend our Constitution every time a new EU treaty is agreed. A referendum to ratify Lisbon is only required if "the essential scope and objectives" of the existing treaties are altered. It is plainly arguable that the changes made by Lisbon are not of this magnitude and that it would be competent for the Oireachtas to ratify by statute.
The Government never seriously considered this approach. But the reason for that is ultimately political rather than legal. The Government would fear a political backlash if it attempted to deprive people of the right "to have their say". Particularly in the context of the initial rejection of Nice, the Government would stand accused of bypassing the electorate for fear of rejection by it. There would also be some risk of a Crotty-type admonishment from the Supreme Court.
But the simplistic political analysis that it is better to "let the people have their say" is a fig-leaf that does not explain the impending travesty of a wholly ill-informed electorate being asked to vote on Lisbon. After all, this is a representative democracy in which we elect those whom we entrust to enact laws on our behalf. We didn't have a referendum for the smoking ban and we don't ever have a referendum to approve the budget. The cognoscenti deride the Californian-style fetish of legislation-by-popular-ballot and the little-known provision in our Constitution (Art. 47.2) which allows the public to have its say on ordinary legislation by way of veto has since 1937 only gathered dust.
In an era when government delegates so much of its power to regulators, statutory agencies, tribunals and commissions, and is stripped to a largely managerial function, political leadership is a largely forgotten commodity and it is therefore convenient to delegate the awkward task of Lisbon ratification to a bemused electorate. There is no clear legal requirement to ratify Lisbon by referendum and the political rationale for doing so is not, as is often suggested, to empower the electorate, but rather is to immunise the Government from subsequent criticism. The impending referendum, far from being a demonstration of democracy in action that ought to embarrass our neighbours, is an unedifying buck-passing exercise on the part of our politicians that, zealots aside, will be met with the apathy that it entirely deserves.
Rossa Fanning is lecturer in law at University College Dublin.