by Hugo Brady

The Irish did the wrong thing for the right reasons in their referendum on the Lisbon treaty. Voters rejected an international treaty, the benefits of which did not seem to merit a change to the country's constitution. Their politicians, on the other hand, failed outright. They ran a flaccid campaign and were out-thought and shouted down by a colourful assortment of scaremongers. By polling day, opportunists had convinced 70 per cent of No voters that the Lisbon treaty was wide-open for renegotiation and that Irish sovereignty and identity was in danger under the current text. In addition, the public were promised a No vote would be pro-European and have no negative consequences.

Given that the EU already faced a similar debacle when Ireland rejected the Nice treaty in 2001, commentators think that – as with Nice – the EU will now engage in some standard hand-wringing before graciously accepting an Irish offer to hold a second referendum before May 2009. That course of action is fraught with difficulty and danger, however not least because the Irish may well say No again or deliver a Yes on a turnout lower than before (53 per cent).

For starters, most have forgotten that the Irish held a general election in 2002, providing the government with the popular legitimacy to put the Nice treaty to the people a second time. In addition, the government carried out a wide-ranging reform of how EU matters were debated in public and the Dáil, the Irish parliament. The Irish constitution was changed to exclude future participation in an EU military alliance, a perennial concern of the public. Lastly, Ireland’s EU partners added a declaration that the Nice treaty would not affect Irish neutrality. Now, however, with another general election some years away, a second poll is only a possibility in the unlikely event that the government can get clear and widespread public support for such a move by other means.

Secondly, over the years Ireland has accumulated many specific exemptions and opt-outs from EU policy. A legally binding protocol from the time of the Maastricht treaty prevents any EU law from affecting Ireland’s constitutional position on abortion. In 1997, the country, along with the UK, decided to remain outside the EU’s passport-free travel area and participates in policies on immigration and asylum, on a case-by-case basis only, subject to the approval of the Dáil. The Lisbon treaty would extend that opt-out into crime and justice matters. Even supposing a second referendum is politically possible the list of policies that Ireland can choose to stand aside from is short.

Ironically, a second referendum was the logical position of many in Ireland's No campaign. According to them, a better deal for Ireland and for all Europeans was possible. (See one example, a list of demands from the Sinn Féin party, at http://www.no2lisbon.ie/media/SFsubmission_a_better_deal.pdf [2].) They invited voters to make the strategic move of voting down this particular version. Though it may be galling to its EU partners, the Irish government must now partially vindicate this claim by asking for a bi-lateral re-negotiation with the rest of the EU. There is no other way forward, assuming the Czech Republic, Germany, Poland and all others ratify.

Two changes could make the Lisbon treaty more palatable to Irish voters. First, the Irish government must negotiate an ‘Ireland in Europe’ protocol with the EU, codifying all existing guarantees and opt-outs on family law and justice issues into one document. (Many voters do not see the continuity between EU treaties and think that old guarantees are over-written by new texts.)The existing understanding on defence from the Nice treaty, plus a new clarification on corporate taxation, could be added as declarative text. The Irish constitution could be further amended with a clause forbidding the state to sign up to future EU tax harmonisation measures without a further referendum. This would be similar to the existing constitutional guarantee on joining an EU military alliance. This protocol should be deemed weighty enough to justify a second referendum, which could be held quite soon.

Second, the clearest institutional issue to emerge from the referendum campaign is public dissatisfaction that there will be no ‘national’ commissioner in Brussels for certain periods under the Lisbon treaty. The member-states should attach a declaration to the treaty, promising to restore the principle that each EU country will be represented in the European Commission from the accession of Croatia in 2010. This would not require a renegotiation of the Lisbon treaty since the principle can be re-inserted into EU law via Croatia’s accession treaty. No country is likely to object to having its own commissioner at all times. Therefore, this will not be a sole concession to Ireland. Whether the EU likes it or not, commissioners have popular legitimacy in many member-states as a link between the EU and their home country. Efficiencies in the Commission will have to be achieved in other ways.

Many will say that ungrateful Ireland has no right to such concessions when all countries have already made sacrifices to negotiate the Lisbon treaty. But since the EU is fundamentally a consensual body and Ireland cannot be made to leave (in any case another referendum would be required), political compromises will have to be made. The reality is that the Irish have already paid a bitter price: the country has lost the goodwill that came with its image as a successful and pro-active EU player. That was more important to its national interest than votes or commissioners.

Equally, the Irish government may be unwilling to damage Ireland and the EU further by risking a second vote. But throughout the referendum campaign, Yes activists and confused voters complained that the Treaty of Lisbon had no selling point or tangible basis on which to make a decision. Now, the extraneous arguments of the No side have created a situation where the public need reassurances that Ireland's EU membership is not leading them in a direction where they do not wish to go. A single document recognising Ireland’s sovereignty in key areas alongside a guarantee of representation on the European Commission for all EU countries would allow pro-campaigners to fight another referendum in terms that matter to voters. It could also be a way for Ireland to re-establish its pro-European consensus.

Hugo Brady is a research fellow at the Centre for European Reform.