A fighting chance

The result of the second referendum on accepting the Lisbon Treaty in the Republic of Ireland (Ireland), on 2 October 2009 (by 67 per cent to 33 per cent), arguably signals the green light to the European Union train's journey to the ultimate destination of a federal, supra-national state called Europe. However, a number of constitutional brakes by member states, if not derailing the train, may decelerate the speed of that train in the next few weeks.

Unlike the UK (which does not possess a written constitution) Ireland's written constitution required the holding of a referendum to incorporate the provisions of the Lisbon Treaty into domestic Irish law. The first Irish referendum on the Lisbon Treaty on 12 June 2008 resulted in the Irish electorate rejecting the treaty by 54 per cent to 46 per cent. However, this clear 'no' vote was interpreted by the EU establishment and Irish government as a 'not yet' or 'maybe', rather than as an emphatic repudiation of the treaty. The salient features of the treaty were:

1. Creation of the new post of president of the European Council (held for two and a half years). This post replaces the current rotating six-month presidency shared out by the member states. The enhanced president's role will include foreign affairs and external affairs, with the ultimate goal of raising the influence of the EU on the global stage.

2. Reducing the number of EU commissioners from 27 to 18, thus streamlining and making more efficient key EU organs and arguably reducing wasteful EU bureaucracy. The obvious downside of this for Ireland was the loss of their commissioner.

3. EU given a legal personality.

4. Removal of national vetoes (i.e. requirement of unanimity) in a number of areas (maybe up to 80).

5. A phased-in redistribution of the voting weights between member states, between 2014-2017, with greater emphasis on qualified majority voting to speed up EU decision making, and with safeguards preventing abuse by larger member states.

6. New powers conferred on EU institutions (i.e. the EU Commission, Parliament and Court of Justice) in the areas of home affairs and justice.

The reversal of the first referendum result on 2 October 2009 is attributable to a number of factors, including the dire economic crisis in Ireland and the belief that rejecting the treaty on a second occasion might not go down well in EU institutions expected to bail out Ireland financially subsequently; the guarantees that Ireland would retain her commissioner; and that the treaty would not undermine Ireland's traditional neutrality nor compromise her laws on abortion.

UK implications

Despite all three main UK parties promising to hold a referendum on the Constitutional Treaty (the virtually identical precursor of the Lisbon Treaty, which itself had been rejected by both the French and Dutch electorates in referendums held in May/June 2005) in their respective 2005 general election manifestoes, no such referendum has yet been held or is likely to be held. Regardless of honouring manifesto commitments given to the electorate, given the huge potential constitutional significance of the Lisbon Treaty, with the effective transfer of law-making powers from the UK to EU institutions in a wider range of areas allied to the creation of an EU president, and the other major changes made by the treaty, the UK electorate ought sensibly to have been trusted to approve such a radical and far-reaching step. Yet again, sadly, the democratic deficit at the heart of ever-increasing EU integration is apparent. Furthermore, the Diceyean concept of parliamentary supremacy/sovereignty '“namely that the Westminster Parliament can pass any law it wants on any matter and that no other body can challenge an Act of Parliament '“ has unquestionably been further eroded.

Developments in other EU member states may, however, throw a constitutional spanner in the EU integration works. Despite President Kaczynski, the Polish president signing the Treaty on 10 October 2009, and thereby ratifying it, Vaclav Klaus, the Czech president, has thus far (as at 30 October 2009) refused to sign the Lisbon Treaty (approved by both the Czech Parliament and Senate) thus holding up ratification. President Klaus' pretext for refusing to sign the treaty was, among other things, that he was seeking certain guarantees on the Charter of Fundamental Rights (the UK has an opt out from this) which is incorporated into EU law by virtue of the treaty, and that also he needed to be provided with concrete guarantees about property rights (concerning land owned by Sudetan Germans) in the Czech Republic. The new European president and the new European Commission cannot be appointed and meet until the treaty is fully ratified in all 27 member states. However, the former log-jam was apparently cleared on 30 October 2009 at the Brussels summit where EU leaders agreed a deal to secure the ratification of the Lisbon Treaty by granting the Czechs an opt-out from the Charter of Fundamental Rights.

A further possible brake on the progress of the EU Treaty train journey is the latest legal appeal of 17 Czech senators to the Czech Constitutional Court on 29 September 2009, to be heard on 3 November, concerning exactly what powers can and cannot be transferred to the EU under the treaty from the Czech Republic.

The promise of the Conservative leader, David Cameron, to hold a referendum on the treaty if the Conservatives are elected into government in the next general election and if the treaty has not then been ratified by all 27 member states of the EU is all well and good if the treaty is not ratified in all member states, but it may be meaningless if all the other 26 member states have fully ratified the treaty.

The Irish referendum on the Lisbon Treaty (regardless of the result) should be welcomed. At least Ireland gave its people the opportunity (twice!) to vote on this treaty of major constitutional significance, despite the impenetrable legalese that it was written in. The UK electors were not trusted to vote even once on the treaty; although the benefits of democracy and voting may be greatly exaggerated given the experience of the French and Dutch governments'/political elites' reaction to defeat by the French and Dutch electorates in their referendums on the Constitutional Treaty in 2005. Also, surely now, all UK citizens must finally waken up to the fact that EU laws are part of UK law, and not part of some separate legal system.