I thank the Chairman. My principal involvement was with part three of this report. I will go through the scenarios envisaged in that, which may be of some use to the sub-committee.
It has always been theoretically possible that the member states could abandon any hope of reforming the present treaties. However, it seems highly unlikely, to put it mildly, that the other member states will give up on any hope of reforming a union which serves multiple purposes for them. The EU acts as a guarantor of peace, an organiser of the Single Market and offers a system of collective organisation in a world which is increasingly dominated by political and economic giants.
In envisaging the possible scenarios in light of that fact, it seemed logical to arrange them broadly in order of their likelihood. For better or worse, it seems that, as a result of the conclusions of the European Council, Ireland is taking the initiative in finding a resolution to the current situation. The Council mentioned that consultations by the Irish Government were continuing with a view to finding a way to resolve the present difficulties. At present, it looks as if the initiative rests with the Irish State.
Category A of the scenarios we have examined involves a renewed attempt at ratification, which looks like the most likely option. In the second of our scenarios, Ireland does not ratify the treaty but the other member states opt to maintain a 27-state approach. In other words, they opt to keep all member states on board, including Ireland. The final scenario, which we hope is the least likely, is one where Ireland does not ratify the treaty and the other member states seek to progress without Irish involvement. We must envisage all of these scenarios, each of which contains a range of options.
In terms of any scenario involving a renewed attempt at ratification, it is important to point out that if such an attempt is made, it is likely to take place in an altered legislative context, at both national and EU level. That is what happened with regard to the Treaty of Nice. It is likely that the Government would make an attempt to respond at a domestic and international level to a range of criticisms and concerns that were raised during the first referendum campaign. Clearly, with the likes of the Millward Brown survey and the process we are undergoing here, a lot of effort has been invested in trying to determine precisely the grounds on which the 12 June referendum failed and what can be done in light of that failure. Some of the concerns might be addressed by Oireachtas legislation or even, should it be found necessary, by constitutional amendment. Others would be likely to be addressed by declarations, legally-binding decisions and, perhaps, although this might encounter resistance on the part of other member states, protocols to the Lisbon treaty, as well as other measures at European level. The Government might then argue, as it did at the time of the second Nice referendum, that there was now a changed environment allowing for the reconsideration of the Lisbon treaty.
I wish to dwell briefly on declarations, decisions and protocols. Members are probably already aware that provisions of protocols have the same status as provisions of treaties in law. There is some precedent for Ireland, having negotiated protocol provisions before. We are all familiar with the Maastricht abortion protocol. Any protocol or set of protocols providing for specific Irish opt-outs from the EU system envisaged under the Lisbon treaty would have to be ratified by all of the other member states, except those states which could argue that their original ratification of the treaty was broad enough to cover that particular protocol.
Clearly there are limits to a protocol-based approach. There are critical provisions in the Lisbon treaty which it would not be possible for a state to opt out of including, for example, the re-weighting of votes and the right to nominate a Commissioner. Second, protocols might also be rejected where they would generate comparable demands in other member states for unique treatment and thus might lead to a wider unravelling of the Lisbon treaty. I heard some mention at this sub-committee of looking for a constitutional filter, that is, a mechanism whereby everything is filtered through the fundamental rights provisions of the Irish Constitution. I imagine there might be some resistance to that from Germany and Poland, for instance, where there is also sensitivity about constitutional and fundamental rights. I am not sure if this would be a runner but it is a point worth making in this regard.
Declarations are not legally binding and should be best regarded as akin to political statements of intent. They have been used extensively by member states to address issues of significance that are not suitable for a legally-binding text. Declarations have in the past been used to clarify a member state's position on particular issues. Professor Laffan referred earlier to some of the occasions when Ireland availed of declarations. The 2002 Seville Declarations relating to neutrality are illustrative in this regard. In the Lisbon treaty context, one might envisage statements in any one of a number of fields such as neutrality, workers' rights, taxation issues and social and moral matters.
Decisions is the third category in which change might take place at international level. Decisions form part of the settlement agreed following the initial "No" result of the Danish referendum on the Maastricht treaty. They are peculiar legal creature decisions that were never before encountered at European level and arise out of the Edinburgh Council conclusions. They were agreed by the Heads of State and Government meeting within the European Council and are best regarded as a type of treaty but independent of the constitutive treaties for the European Union. They are legally binding as a matter of international law and cannot amend but only clarify or implement treaties. The constitutive treaties take precedence over them. There is some uncertainty as to whether the International Court of Justice or the European Court of Justice would have jurisdiction in regard to them. It would probably be the International Court of Justice that would have such jurisdiction. Domestic level reforms could also be envisaged. An issue discussed during a previous session is a possible increased role for the Oireachtas in regard to control of matters at European level.
I will now address the various scenarios as quickly as I can. Scenario one is a second referendum on the Lisbon treaty. There is not a great deal that can be said about this other than to make the point that no legal obstacle appears to exist to the holding of a referendum on precisely the same issue or some variation thereof. This is governed by Article 46.2 of the Constitution.
The second scenario is ratification to some extent by Parliament rather than referendum. This has been suggested by some as an appropriate approach to take. In other words, rather than holding a referendum on the Lisbon treaty as a whole, some aspects of it could be dealt with by way of referendum and others could be ratified by Parliament. The main judicial authority in this regard is the Supreme Court case of Crotty v. An Taoiseach. The approach taken in this case hinged largely on the question of whether a new treaty alters the essential scope or objectives of the existing treaty. If it does, the existing constitutional authorisation to join the Union and to sign up to the treaties which have gone before Lisbon, will not extend to immunising entry to the Union as envisaged in Lisbon or extend the constitutional immunities provided for by Article 29.
The effort to determine when an amending treaty goes beyond the essential scope or objectives of the existing treaties is impossible to apply with much certainty largely because Crotty is the only case to have been decided on this particular point. I have heard some of my legal academic colleagues say that a referendum was not necessary and others assert that there is absolutely no doubt that a referendum is needed. There is a whole spectrum of opinions in this regard. The point is not merely legal, the legal situation has contributed to public expectation that any significant EU treaty change will entail an amendment to the Constitution. There are political and legal issues involved.
It has been suggested that specific provisions or objectives of the treaty that might go beyond the scope include measures such as giving legal effect to the provisions of the Charter of Fundamental Rights, the ending of the situation whereby the European Community has a separate identity and the role of the proposed high representative in foreign affairs and security policy. These are only suggestions. The reality is that we do not know what will be the position until the Supreme Court pronounces on the matter.
There are three possibilities in relation to ratification of the Lisbon treaty to a greater or lesser extent by Parliament alone: the holding of a referendum only in regard to those parts of the Lisbon treaty which it is considered might raise constitutional difficulties. In principle, if the State were to hold a referendum only on aspects of the treaty which might raise constitutional difficulties, and the vote was positive, the Government could then proceed to ratification. A complication arises, however, in that it is difficult to know in advance of a Supreme Court ruling which aspects of the treaty might raise constitutional difficulties and as such it would be difficult to design a referendum in this regard. One could attempt to have a referendum on any aspect of the treaty one believes might raise constitutional difficulties.
If a referendum vote in regard to any of those aspects of the Treaty of Lisbon was negative it does not appear possible for the State to ratify some but not all of the treaty. What the State would have to do is ratify the treaty as a whole, subject to a protocol providing for opt-outs in regard to those parts of the treaty rejected by the electorate. Those opt-outs would have to be agreed with other member states and if they involved a protocol, those protocols would have to be accepted by the other member states and ratified in their national legal systems.
Holding a referendum only on those parts of the treaty that have raised political difficulties is basically the same as the previous option I mentioned, except it would be a broader approach to take. I draw attention to the point I made earlier concerning the unsuitability of certain provisions being dealt with by protocols, such as the re-weighting of votes and Commission membership.
Parliamentary ratification of the entirety of the Treaty of Lisbon would be the third option. It is not clear whether that would be constitutional, quite apart from the political and democratic considerations that would apply. There may be provisions of the Treaty of Lisbon that require a constitutional referendum and questions of democratic appropriateness and political acceptability arise also. The only useful method of attempting parliamentary ratification on its own might be as a means of finding out in advance of a referendum which aspects of the Treaty of Lisbon required a referendum. Whether politically it would be possible to envisage use of it in that manner is another question.
Scenario No. 3 was suggested in an article by Stephen Collins, journalist with The Sunday Tribune. That was an all or nothing style referendum regarding membership of the European Union, as that Union is envisaged in the Treaty of Lisbon. In other words, one holds a referendum to ask whether the State wishes to become a member of the European Union, as the Union is envisaged in the Treaty of Lisbon. It would be an extremely high-stakes strategy to hold a referendum on that basis. I am not sure whether I would recommend it. However, we are not making recommendations.
Let us consider scenarios whereby Ireland does not ratify the treaty and the other member states opt to retain a unified 27 state approach. That is the second set of scenarios. I wish to mention three of them. The first is an agreed disaggregation of the Treaty of Lisbon. In other words, one takes apart the treaty of Lisbon and one adopts by other means as many of its provisions as possible. One unbundles it, in effect, and puts it together again. The kind of things one would have to do to do that would be to use the treaty's enhanced co-operation procedures, the flexibility clause in Article 308 of the EC treaty, inter-institutional agreements, political commitments, treaties outside the constitutive treaties along the lines of the Treaty of Prüm that was agreed some years ago and use of the Croatian accession treaty. The result, as members might anticipate from my listing of the ways in which one would do it would be a mess. It would a complex, opaque web of legal and non-legal rules, beside which the complexity of the Treaty of Lisbon would pale in comparison. It would be inferior from the point of view of the rule of law. In addition, forcing the other member states to avail of that option would be hardly likely to win Ireland a great deal of goodwill. From an Irish perspective that option would clearly be preferable to the other member states seeking in some way to go ahead without us.
The suggestion of a mini treaty has also been made. John Temple Lang, a very well known lawyer, made this suggestion. If another attempt at ratification of the Lisbon treaty fails or is ruled out, it might nonetheless be considered in the interests of the State to offer to ratify by parliamentary vote aspects of the Treaty of Lisbon which do not appear to require a constitutional referendum in this State and yet are considered highly important to other member states. I refer, for example, to the re-weighting of votes for the purposes of calculating a qualified majority in Council or the provisions laying down the number of Members in the European Parliament. Neither of those seems to require a constitutional amendment, especially the re-weighting of votes, because if one thinks about it, we have had a succession of accession treaties, which have effectively re-weighted votes in the European Union and none of them have ever been held to require a referendum.
Renegotiation is another scenario that has been put forward by some. At present, there is no indication from any other government that it might be willing to recommence negotiations on the existing treaties. The matter has been rehearsed through this committee on previous occasions but I make the point that eight years of negotiation underlie the Treaty of Lisbon. It is a complex compromise and there is a genuine fear on the part of the other member states that if we try to renegotiate the treaty we would open a Pandora's box and we might never get agreement on it.
Even if such renegotiation were to succeed, there would be no reason to believe it would result in a strikingly different treaty to the one proposed. This was the case when the constitutional treaty fell. Therefore, why would we expect a strikingly different treaty after the fall of the Lisbon treaty? There would be no reason to expect a better deal for Ireland. There is little or no incentive for the other member states to renegotiate with us because they are acutely aware that Irish Governments have twice failed to win referendum votes on EU treaty ratification.
Any new treaty would have to be ratified in all member states. Since the UK Conservative Party, which still seems likely to come to power in the United Kingdom in 2010, has insisted that no new treaty will be ratified by a Conservative Government, such a treaty, even if agreed, would actually have very little chance of being ratified. Renegotiation seems a wholly unlikely prospect.
We obviously hope that the least likely scenario will involve member states seeking to progress without Irish involvement if we fail to ratify the treaty. On the other hand, the point must be made that no such scenarios can be entirely ruled out in the event of permanent Irish non-ratification.
Let me address the four scenarios as rapidly as possible. First, on the replacement of the Lisbon treaty with a similar treaty requiring an altered ratification process, one could theoretically envisage the other member states agreeing the content of the Lisbon treaty again but including a clause therein stating that, instead of its having to be ratified by all member states, it would come into force after a number of member states ratified it, but only for those member states. That approach was used in the adoption of the US constitution. Rhode Island rejected it originally but changed its mind afterwards. Only Rhode Island would have borne the consequences of its decision.
The second scenario is the denunciation of existing EU treaties and the adoption of a new EU treaty framework. This is not specifically provided for in the treaties but denunciation of the treaties has always been regarded by the member states as a legal right. That point was exemplified by the holding of a referendum in the United Kingdom in 1975, which was conducted on the basis of a belief by all concerned that the state retained the right to leave the then EEC.
The third scenario is leaving the European Union as an empty shell and establishing a new union without Ireland. This is similar to the last possibility except that the existing treaties would not be denounced, merely left to founder in neglect. There is a rough precedent for this. The 1954 Brussels treaty establishing the Western European Union is still on the books but most of that union's primary functions have been taken over by the European Union.
The final option, which Professor Thom correctly stated would not make a great deal of sense for Ireland, would be to leave the European Union in favour of the European Economic Area or some other special relationship. The only scenario in which it would be possible to envisage such a step would be if Ireland were presented with a less palatable alternative by the other member states. Such an alternative would include the preceding two scenarios, namely, denunciation and leaving the European Union as an empty shell. This is most certainly not on the agenda for now and I hope it never will be.