The Government’s EU Problem: No Referendum = Credibility loss, possibly fatal
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This Government would probably gleefully order the ritual sacrifice of half a dozen of its junior Ministers at the foot of the Papal Cross in the Phoenix Park if it thought such slaughter might avoid having to hold a referendum on the new intergovernmental Treaty.
Right now there is a different ritual underway. The same civil servants from the Attorney General’s office who, according to Europe Minister Lucinda Creighton, were part of Ireland’s negotiating team in Brussels on the Treaty, will be putting in their tuppence worth of advice to the Attorney General, to whom the Cabinet has now referred the question as to whether or not a referendum is required. The AG will be under ‘no pressure’ in coming to her decision, according to the Taosieach. It’s also a fact that the most the AG can do is advise the government of the day. It is ultimately their decision as to what happens, in light of any advice that is offered.
Then again, on the face of it, the Government has done as much as it can to ensure that the wording of the Treaty will not trigger a legal requirement for a referendum.
According to a scoop in the Irish Times, the Irish officials negotiating the final Treaty text were mandated to ensure that the Treaty wording would not necessitate a referendum in Ireland. The paper quoted an unnamed official. The Taoiseach told the Dail the following morning that he does not deal with comments in newspapers made by unnamed officials, which is a bit rich considering the number of inspired leaks from within the government regularly attributed to ‘sources close to the government’, or to some minister or other that the rest of the world is supposed to take seriously.
The Government does not want a referendum. Tanaiste Eamon Gilmore said as much at a meeting of the Dail Foreign Affairs Committee a couple of weeks ago. Transport Minister, Leo Varadkar, added fuel to the fire when he declared earlier this week that referendums are not necessarily the best way to make complex decisions (true); are not even especially democratic within a system of representative politics ( arguable); and that any referendum on this Treaty would be as much about septic tanks and/or rivalries between the main opposition factions (definite) than the subject matter of the Treaty itself. Both of these esteemed members of our Government were speaking well before any final text had been agreed in Brussels, never mind signed off by 25 of the 27 Eu Governments.
The Government has every right, too, to be concerned that a referendum will not deliver a positive result. Last Sunday’s Red C opinion poll for the Sunday Business Post records 72% in favour of a referendum but only a marginal majority in favour of a ‘yes’ vote. It’s a general rule of thumb that in any referendum on a contentious issue, a two thirds majority in favour is required at the outset of the campaign if there is to be any chance of the measure being carried. On the Red C figures, the referendum would not have a prayer.
The Treaty is contentious. Fianna Fail has come out in favour of a referendum as well as advocating a vigorous public information campaign by the Government on what the Treaty means for this country and what it will mean to our democracy, and control of our own economic destiny, over the long term. It is taken as read that Sinn Fein will oppose ratification of this Treaty, whether the Government proceed through the parliamentary route of legislation or via a referendum of the people. And, no doubt, there will be all sorts tripping over one another down in the Four Courts to launch constitutional actions to force a referendum should the Government stick with the legislative option.
But there is even more fun in store for us this time around. The Independents in the Dail are reported to be looking at using Article 27 of the Constitution to force a referendum on any Government sponsored legislation to ratify this Treaty. To do that, they will need one third of Dail members. As it stands, the opposition has 52 deputies against the Coalition’s 109, leaving aside the one Fine Gael TD, Denis Naughten, and two Labour, Tommy Broughan and Patrick Nulty, who have lost the parliamentary party whip. There’s no guarantee that Broughan, Nulty or Neachtain would line up with the rest of the Opposition to make up the numbers for an Article 27 plea. Even at that, one or more further defections from the government ranks would be required.
But let’s assume for the sake of argument that the one third barrier is crossed. The initiative then passes to the Seanad where a majority of all Senators must agree or it’s a lost cause. Fianna Fail and Sinn Fein have 17 Senators between them. There are 13 ‘Independents’, not all of whom could be relied upon to vote against the Government. But theoretically, with 30 votes, only one defection would be needed from the Govenment ranks to deliver the required Senate majority.
More fun lies in store when the matter gets to Aras an Uachtarain, as the whole thing stops dead in its tracks unless President Michael D. Higgins accepts the motion of the Dail and Seanad. Even after all that, this would not be an ‘ordinary’ referendum as we know and love them. A further constitutional provision kicks in, a subsection of Article 47, requiring that one third of all the electorate must vote ‘No’ for the Government’s proposed legislation to be defeated. On a high overall turnout of about 70%, this suggests a 60% ‘No’ vote would be the least required to meet that threshold.
And hold on; it’s not even finished at that stage. The Government could then dissolve the Dail and call a general election. Assuming the same parties won that election, they could settle the matter finally with a majority Dail vote.
Hardly surprising, then, that Article 27 has never been utilised since the 1937 Constitution came into effect.
From the Government’s perspective, the easiest thing would be to bow to the inevitable and concede to a referendum long before any such process gathers political momentum. For Senators, there’s the chance to demonstrate that the Seanad retains relevance within our democracy and should not be abolished as Enda Kenny has pledged. Our new President, Michael D Higgins, would be faced with a lonely decision, though based on his track record of personal and political integrity and his commitment to act in the best interests of the people, it should not be a difficult decision for him.
The real losers here may be the Government, whatever way they turn. They might do better to go for a referendum option and fight their corner than politically brazening it out and hiding behind the Attorney General’s legal advice. The issue is not whether a referendum is legally required to ratify this instrument; a referendum on the Treaty is now a political demand. Tough it out against all challenges, including the Article 27 process, and they just might get away with it, given the strength of their parliamentary majority, the lack of any half-way attractive alternative government on offer and the propensity of the electorate to forget what happened last week never mind within a timeframe of three years ago which is the old territory of the distant past where this Treaty would belong by the time the next general election comes into view. Or so they may reckon.
Except that this Treaty is not about some fluffy broken election promises. It goes to the heart of Ireland democratic future. People need to be informed about what it means and what are its implications for the future. The public want to debate what’s in the best interests, of what may be the least bad option in respect of the decisions that have to be made and which we, as citizens, want to have a say. It’s a simple equation in political terms: no referendum = loss of credibility. Probably fatal too, over the long haul.