A second Lisbon referendum is the least bad option facing us because doing nothing is not on and the Oireachtas has serially abdicated its decision taking role on EU treaties, writes Pat Cox
THE GOVERNMENT has no risk free option on how it responds to Ireland's recent rejection of the Lisbon Treaty, whatever the result of its current period of analysis and reflection.
A measure of the political intensity of what awaits is revealed by the response to "the personal view at this stage" expressed by the Minister for European Affairs, Dick Roche, last weekend at the Humbert School in Co Mayo, that a second referendum on the treaty would ultimately be required.
Some argue that such a prospect would be to treat the electorate with contempt, others, including some of Mr Roche's party colleagues, such as Mary O'Rourke TD, believe that a second referendum would be doomed to fail "no matter what way it is dressed up".
The external context is clearer. The ratification process has continued among our EU partners and on the balance of probabilities it will result by year's end in the 26 other member states having ratified the Lisbon Treaty. Ratification of the Constitutional Treaty also continued after the French and Dutch No votes by those states who chose to do so, including by way of referendum in Luxembourg.
That others proceed reminds us in Ireland that the Lisbon Treaty embodies the settled will of the 27 governments of the member states of the EU after most of a decade spent in framing EU reform. This determination to proceed and its implications manifest a clear political will by our EU partners.
It would be imprudent for us to ignore this fact as it would be unwise to conclude that the exercise of sovereign choice by others in fulfilling agreements freely entered into by them was an offence to our sovereign Irish right to chose. We all get to chose and then to live with the consequences of the choices made.
Precedent offers some guidelines. The Treaty on European Union was rejected by referendum in Denmark even as it was accepted by a similar means in Ireland and France. All but the Danes were in a position to ratify the treaty. Technically, then as now, the treaty could not legally enter into force without unanimity among the member states.
As we know it duly became law after a second Danish referendum which opted out of its core content but otherwise formally approved its ratification. The squaring of the circle recognised the weight of the overwhelming political consensus to ratify by means of a negotiated Danish self exclusion from key provisions. The opt outs continue to apply to this day and will do so unless and until at some future date the Danes decide to opt in.
Ireland's second Nice referendum was less dramatic in its implications. We got some additional negotiated clarifications, set up the Forum on Europe at home, while the political forces on the Yes side resolved to campaign properly and harder the second time round.
Precedent suggests that where there is a clear consensus to proceed by all but one member state that the weight of numbers will prevail with the burden of adjustment resting on those who cannot or will not ratify. From what has been said and done by other member states since Ireland's No vote there is nothing to suggest that precedent is imminently about to change.
The last time an Irish government contemplated a second referendum there was potential comfort to be had from raising the level of voter turnout from the very low level of the first Nice referendum. This comfort zone is absent on this occasion.
In addition the political terrain has been changed by the successful deployment in Ireland for a first time of an Irish homespun version of classic Tory British euroscepticism. This finds its force not just in accessing unprecedented levels of campaign financing from sources still unknown but also by being vigorously backed and promoted by the increasing penetration in Ireland of elements of the British print and broadcast media, aided and abetted by some Irish fellow travellers, whose visceral anti-EU instincts hold such sway on their home territory.
This makes the result of a second Irish referendum at best highly conjectural, should it take place.
The alternative route of representative democracy and ratifying the Lisbon Treaty through the Houses of the Oireachtas could have much to commend it but, in my view, its time has passed. I believe that the implications of the Crotty judgement always were narrower than the interpretation which successive governments have chosen to apply to it.
The merit of consulting the public has as its counterpart the dilution of Irish parliamentary democracy in critical affairs of state such as treaty relations with the EU.
Having serially abdicated the parliamentary route for EU treaty ratification since the Single European Act and having invited citizens to express their views on the Lisbon Treaty the government and the Houses of the Oireachtas have, in my view, forfeited their freedom and entitlement to act.
They relied instead on popular sovereignty. The people have spoken, for better or worse, and under our constitution are the ultimate repositories of our sovereignty. There may be lessons for the future but for Lisbon the die is cast.
Whatever the timing and content a referendum is the only way to settle the matter, whether it is a stripped down Danish style, opt out-ridden choice or a more vigorous rerun of a final product approximating what we already know is a choice the government must make in consultation with our EU partners in advance of putting the question again.
Doing nothing and in effect telling 26 other states to get lost is not a viable or realistic political option.
Passing some bits of the treaty through parliament and opting out of the rest is theoretically possible but as argued above is an option whose time has passed in my opinion.
In these circumstances I find Minister Roche's musings honest even if provocative to some, perhaps maybe even many.
A second referendum is not an especially inviting prospect but it seems to me it is the least bad option from a range of options all of which are second best but it is has the merit of being a democratic option.
• Pat Cox is a former president of the European Parliament and was active in the Lisbon Treaty referendum campaign on the Yes side