The Lisbon Treaty: To ask or not to ask

Since its inception, the Lisbon Treaty has been controversial: a constitution in disguise? A tidying up exercise, essential to allow an enlarged Europe to operate? The end the national veto? These, and many more issues, have caused much debate. Yet there have been many contested Treaties before: the Single European Act, Maastricht, Nice. Yet none have caused the same level of debate about the method of ratification. The European Constitution failed after it was rejected by voters in France and the Netherlands, before the United Kingdom got the chance to vote in a promised referendum.

5th July 2008

Since its inception, the Lisbon Treaty has been controversial: a constitution in disguise? A tidying up exercise, essential to allow an enlarged Europe to operate? The end the national veto? These, and many more issues, have caused much debate. Yet there have been many contested Treaties before: the Single European Act, Maastricht, Nice. Yet none have caused the same level of debate about the method of ratification. The European Constitution failed after it was rejected by voters in France and the Netherlands, before the United Kingdom got the chance to vote in a promised referendum. With Lisbon, however, things are different and the Treaty has been ratified in the UK without a referendum. A challenge to that change of heart was recently rejected by the High Court in London. In Ireland, however, the Treaty was recently rejected by the voters. On a turn out of 53.1%, 53.4% of the voters rejected the Treaty. The Treaty, which was due to come into force on 1 January 2009, requires to be ratified by all 27 Member States before that is possible. Entering into force at all, let alone on time, has now been thrown into doubt as a result of the "no" vote in Ireland.

Why does Ireland have a referendum?
Ireland is the only Member State that must, according to their constitution, have a referendum to approve any amendment to their constitution. Each European treaty requires an amendment to the Irish constitution therefore each treaty is subject to a public vote, even though the Irish electorate account for less than one percent of the population of the EU.

We have been here, or at least somewhere similar, before. In 2001, the Irish people rejected the Treaty of Nice. That Treaty, which allowed for the enlargement of the European Union, was eventually ratified when a second referendum was held a year later and was won by the "yes" campaign. However, the turnout for the 2001 referendum was only 35%, a record low, whereas 53% of the electorate turned out to vote on the Treaty of Lisbon. The European Union would be sensitive to any accusations that it was "bullying" a smaller Member State if it were to insist that the Irish held a second vote on the Treaty.

What now for the Treaty?
Irish voters appear to have been concerned that the new Treaty could weaken their voice within the European Union with the greater use of qualified majority voting and therefore dispensing with the need for unanimity amongst the 27 Member States. There were concerns also that Ireland's abortion laws and their traditional neutrality could be compromised by changes that were introduced by the Treaty. The Treaty does, however, seek to streamline the running of the European Union that is becoming increasingly cumbersome and it continues to grow. With the President of the European Commission, Jose Manuel Barrosa, warning that "there is no plan b", the Member States will have to take stock of where they find themselves before addressing the problem that the Irish Referendum has presented them with.

A UK referendum?
The Treaty, by comparison, has had a smoother journey in the UK. It has passed the necessary stages in Parliament for ratification. However, ratification was delayed, pending the outcome of a court challenge to the decision not to have a referendum on the Lisbon Treaty. The root of the challenge lay in the Labour Party manifesto for the 2005 General Election. This had contained a promise to hold a referendum on the draft European Constitution. The French and Dutch voters put an end to that Treaty and the Lisbon Treaty was agreed instead. The argument against the government was that, having promised a referendum on the Constitution, and the Lisbon Treaty being "manifestly the same", the public had a legitimate expectation that there would be a referendum.

When the necessary Bill was introduced to Parliament, attempts were made to introduce amendments that would require a referendum to be held before ratification. Each of these attempts failed. The court challenge was therefore the last chance to stop the UK Government ratifying the Lisbon Treaty.

The High Court, however, was not persuaded. Indeed, it disagreed with the applicant at almost every stage: the holding of a referendum was not within the gift of a government, but was within the gift of Parliament as primary legislation would be required; a promise in relation to the Constitution could not also apply to the Treaty as they were not manifestly the same; it was a political, rather than a legal judgment, to assess the materiality of any differences between the two documents; that the promise to hold a referendum has its correct place in the political, not the legal, realm and holding a government to such a promise was therefore a political, not a legal, matter.

After so much debate as to whether the Constitution and the Treaty were essentially the same, with several European leaders making remarks which suggested that they considered they were, it was interesting that the Court was willing to hold that they were not manifestly the same. The Court's final conclusion, that manifesto promises are not legally enforceable, will no doubt have been met with considerable relief within Westminster – manifestos may have looked a lot different come the next election if the Court had held otherwise!

The outcome of the decision is that the Lisbon Treaty has been ratified by the United Kingdom, and without the need for a referendum. It could all be for nothing, however, unless the Irish problem is resolved. The Treaty cannot enter into force until ratified by all Member States and with the proposed entry date, 1 January 2009, fast approaching, time is beginning to run short for a solution which will keep this Treaty on track.