Later this year there will be another referendum in the Republic of Ireland about the Lisbon Treaty. The previous one was defeated so the executive branch of the government has negotiated a set of arrangements with other EU member state governments' executive branches. Whereas polling suggests that public has changed its mind on the Lisbon Treaty for reasons other than these measures, assuming that it were these arrangements which will persuade people to vote differently, how will they make such a difference in practice as to persuade people to vote differently?

The EU exercises powers conferred on it by member states. These powers and the procedures for their exercise are defined in treaties between the member states. Each state has provision for the EU law enacted via these conferred powers to have effect in its legal system. Often EU law will differ from what a member state would enact left to its own devices: there'd be no point having the EU if the outcome of its legislative processes were identical to what member states would otherwise do. As the EU's processes are less democratic than the member states, there is a systematic bias in EU law towards inefficient regulation and the favouring of special interests.

The Irish are concerned about abortion, tax and defence neutrality; the constitution was amended by referendum in 1983 to ban abortion, and this has conflicted with the fundamental EU free trade rules: in the 1990s the Gardai interned a 14 year old rape victim to stop her travelling to Britain, where abortion is a inter alia service provided for profit, for what in Ireland is regarded primarily as a moral issue; EU law would have had to have favoured the British medical industry or the Irish electorate.

The previous solution was to add a protocol to the Maastricht Treaty purporting to exempt Ireland's abortion policies from the general rules about free movement. All solutions have to look something like this. The options are either

  • to prevent the EU from having a particular power conferred upon it,
  • conditioning the exercise of powers on the consent of the Irish government,
  • or to obtain a derogation such that the powers are not exercised against the Republic of Ireland

(which is what they opted for last time). In practice option 2, obtaining a veto, is no good unless one may trust the government not to horse-trade the exercise of the veto for some other policy.

To make a difference, any new compromise measures for the Lisbon Treaty need to be respected by Irish courts when interpreting EU law. Conventionally, EU law has meant "the EU treaties in force as a result of ratification according to the procedures of each member state, plus the much larger body of laws made via processes defined in those treaties". If the Republic of Ireland is to have an effective opt-out or guarantee, somehow that needs to be included in the treaties, but treaties require ratification. The Lisbon Treaty stands ratified in the generality of EU member states, and in member states such as the UK, this ratification was in the teeth of public opposition and manifesto commitments to predicate ratification on approval at referendum.

Should the Republic ratify the Lisbon treaty once a protocol with its guarantees is added, other countries' interest groups might demand similar concessions, re-opening the debate on ratification of the original treaty. How "ratified" does such a protocol need to be for it to have effect in the Irish legal system? Does each member state need to go through its ratification procedure again in relation to the protocol (or the treaty plus the protocol)? If the guarantees in the protocol can become effective without unanimous ratification, why is that necessary for the treaty itself?

This blog post was occasioned by a curious report on the front page of Thursday's Irish Times, which stated "One alternative that member states may offer the [Irish] Government is a legal decision on the guarantees issued by the European Council. This would have legal standing but would enshrine the guarantees in the EU treaties (sic)." It's not clear whether there's supposed to be a "not" in either clause of the second sentence. What on earth is going on here? The European Council is effectively the prime ministers and presidents of the EU member states. Has it suddenly become a legislative/judicial body?

I think what is being proposed here is a formal agreement similar to the Luxembourg Accord whereby de Gaulle obtained a veto on all EEC legislation exercisable by any member state's executive. This was never justiciable and was done away with by Thatcher when it proved a bulwark against market liberalisation. It isn't, or at least shouldn't be something you can argue before the courts, so wouldn't override any EU law adversely affecting Ireland's position on taxation or abortion et c.

But if it were justiciable, would this not constitute an alternative to treaty ratification? Should not member states be concerned that elaborate treaty ratification procedures can be supplanted by the say-so of the head of government, even to the extent of overriding provisions of the national constitution? Can one really envision the Bundesverfassungsgericht permitting the rights of Germans to turn on an agreement between the heads of the executive branches of foreign governments? Against the national constitution? When those governments might depend on extremists for their majorities?

I should note that I make no apologies for the cumbersome wording of sentences above, as the common synecdoche conflating a country ("Republic of Ireland"), its government as a whole ("the Irish government") and those who negotiate on its behalf ("the executive branch of the government") is particularly apt to mislead when EU negotiations are taking place: the executive branch routinely uses its monopoly over external negotiations to usurp the rôle of the legislative branch.

The actual reason the Irish have changed their minds is the economic downturn: somehow it is felt that either the Lisbon Treaty's ratification will be of economic benefit, or will lead to more sympathy and generosity from other EU member states.