June 20, 2008, Ireland’s vote on the Lisbon Treaty – What does it mean? 53.1% of the Irish electorate voted in the referendum, and the Lisbon Treaty was defeated by a “No” vote of 53.4% to a “Yes” vote of 46.6%. Why did this happen? What does it mean? What will the European Union do now about the reforms that are contained in the Lisbon Treaty? Why did the Irish have to have a referendum anyway? Is it acceptable that the voters of one small country should be able to block the Treaty agreed by the governments of all 28 Member States?

These are all questions that go to the heart of what the European Union, in its present form, is and is not.

What is going to happen now? The Irish “No” vote is a problem, but it is not a crisis.

The EU is continuing to function, and to function remarkably well, under the pre-existing Treaties. Many feared that when the EU. The EU is continuing to function, and to function remarkably well, under the pre-existing Treaties. Many feared that when the EU enlarged to 25 members in 2004 that there would be institutional deadlock, arising from the unwieldy size of the membership. It is fair to say that most of those fears have not materialized at all in the past four years.

The Commission, the Council of Ministers and the European Parliament continue to make decisions and to do so with relative speed. The EU is sometimes represented by too many players at international meetings, but these players know their roles and this has not proved to be a disabling problem. It is important to stress that the EU will continue to be a very busy organization in the months ahead. It is playing an active role in concluding the World Trade talks. It is in the process of adopting radical and far-reaching proposals on climate change. It is forging a common energy policy. It is highly efficient in protecting consumers and promoting competition. And in all these matters, it is cooperating closely with partners, such as the United States. All this will continue, while the issues arising from the Lisbon vote in Ireland are examined.

In seeking a solution, EU leaders will look at the context, methodology and format of the presentation of the Lisbon Treaty in Ireland. They will want to ensure that all the outworking of any solution they might propose are realistically faced up to in advance.

Why did Ireland have a referendum, when nobody else had one?

Ireland had to have a referendum on the Lisbon Treaty because the legal advisors to the Irish Government were of the opinion that parts of the Treaty constituted an amendment to the existing Irish Constitution. The Irish Constitution may only be amended by a referendum. Most other European countries have arrangements which allow their constitutions to be amended by extraordinary majorities in parliament. That option does not exist in the Irish Constitution, which was approved by the people in 1937 and has been in operation ever since. Any change to the Irish Constitution to allow it to be amended without a referendum would itself have to be first approved by the Irish people in a referendum. Getting a majority for such a proposal would not be easy. Voters would not easily be persuaded to give up a right which they have enjoyed for over 60 years. The fact that several other EU Member States freely chose to have referenda on the EU draft Constitution will also have legitimated referenda as an acceptable means of deciding big European questions.

What is the background to the Lisbon Treaty?

In December 2001, in ongoing preparation for the 2004 expansion of the European Union from 15 to 25 Member States, EU leaders launched a Convention on the Future of Europe to conduct a broad consultation on the reforms needed to adapt the EU’s institutions and streamline the decision-making apparatus for a much larger membership.

The Convention, involving the main stakeholders in the debate, produced the EU draft Constitution, which was signed by EU Heads of State and Government in 2004 and had to be ratified by all the 25 then Members before it could come into force. Among other things, the Constitution called for more qualified majority voting, a President of the European Council, and EU Foreign Affairs Minister and a smaller EU Commission. (27 to 18 by 2014 if EU membership remains at 27). It decided to present a consolidated draft Constitution, containing numerous practical reforms, to be ratified as a single whole. This approach had many advantages but its disadvantage was that it raised the stakes, turning many practical questions into a single potentially existential one.

When citizens in both France and the Netherlands voted “No” to the draft Constitution in referenda in 2005, EU leaders declared a “period of reflection”. During that period of reflection, not many options were publicly canvassed. Obviously a great deal of emotional and intellectual investment had been put into the compromises contained in the draft Constitution. So there was a natural human reluctance to abandon, or even significantly to change, its content. Eventually it was decided to go ahead with most of the content of the Constitution, but to change it into amendments to the existing Treaties.

This meant converting the draft EU Constitution, which was essentially a single consolidated text, into a lengthy series of amendments to the existing Treaties, all of which remained in force. In other words, a readable document was converted into something much less readable, because the amendments could only be understood by reading the texts being amended and that too involved a series of cross references to a series of other Treaties. Even though the institutional change in the Lisbon Treaty would have increased transparency, the text by which this was to be done was not transparent to the general reader.

This format made it harder to explain the Treaty to electors. It facilitated scare-mongering by those advocating a “No” vote.

What does the result tell us? Some poll analysis has been done since 12 June of the views of those in Ireland who voted “No”. Apparently young people voted “No” by a margin of 2:1. A very large majority of women voted “No”. The large numbers who said they did not understand the Treaty tended to vote “No”. More than 70% of those who voted “No” thought that a new replacement Treaty could be renegotiated with relative ease.

The high “No” vote amongst young people is particularly disappointing, as they are the best educated section of the population. Clearly, more work needs to be done in explaining in schools how the EU works. I am told that many women voted “No” because they feared that Irish military neutrality would be compromised, even though there is no foundation for this fear.

If one compares the constituencies in Ireland that voted “No” with those that voted “Yes”, one sees that upper income urban and suburban constituencies tended to vote “Yes”, while lower income or rural constituencies tended to vote “No”. This breakdown reflects some of the divisions seen in other countries, where those with lower incomes tend to feel more vulnerable to globalization and those with higher incomes tend to support it. European integration is identified, in the minds of some Irish people and of people in other European countries, with globalization, although the EU is in fact a means of controlling globalization. In a sense, many who voted “No” wanted things to stay just as they are now, something that is impossible in real life.

47.9% of electorate did not vote and a higher turnout on the “Yes” side might have been achieved if the Referendum had taken place on the same day as local and European elections, when individual candidates of the “Yes” parties would have been mobilizing their voters more fully.

Some might ask why Irish people, who have gained more from the EU than the citizens of any other EU State, would be inclined to vote “No” to the Lisbon Treaty. It is indeed true that Ireland has gained disproportionately from the EU. Not only did EU membership provide an essential part of the basis upon which Ireland was able to attract foreign investment, but it also involved huge net transfers of money from other EU Member States to Ireland over the past 35 years. This happened under EU agricultural, regional and social policies. The particular makeup of the Irish economy – and especially its big temperate-climate agricultural sector - made it eligible for more categories of EU support than any Member State. Naturally, Ireland availed of these policies, even though not all of them had been put there to benefit Ireland as such.

It is beyond doubt in my mind that the majority of those who voted “No” were not voting against the EU. They saw themselves as voting simply against a particular set of Treaty changes that were put to them in a single document, to which they only had an option to say either “Yes” or “No”. They were not offered any choices among the various proposals in the Treaty, but they did sense that they were being asked for their opinion on the package, and that their opinion would be taken seriously.

Will Ireland be asked to vote again on the same text? Some are suggesting that the Irish people might be offered an opportunity to vote again on the Lisbon Treaty in its present form, but with some clarificatory political declarations. Those people in Ireland who voted ‘No’ because they say they did not understand the Lisbon Treaty might understand it better, or have it better explained to them, in a second referendum campaign. Some ephemeral concerns would be set aside. But some Irish people might argue that their original decision was not being taken seriously if they were simply to be presented with the same document in the same format again.

While I believe that the full content of the Lisbon Treaty would, if understood, be accepted by the Irish people, I am not sure whether presenting it in the same form a second time is necessarily the best way to achieve that. What would happen if the answer was “No” a second time would need to be thought through carefully by everybody, including what one would say in advance, and what it would mean for the EU as a whole.

Can Lisbon be renegotiated? Some in Ireland are suggesting that the Lisbon Treaty might be renegotiated to meet some of the Irish concerns. For example, some say that each Member State might be granted a Commissioner all of the time. That would require a new amendment to the Nice Treaty. Recent EU experience shows that, if you open one part of a treaty for one Member State, other Member States will demand that other aspects be reopened to meet their needs too. Even a slight amendment of or protocol to the Lisbon Treaty would require that all of the States who have already ratified the Lisbon Treaty present the revised Treaty to be ratified all over again by their parliaments.

Are there other approaches? A third approach might suggest itself.

Some of the content of the Lisbon Treaty does not have to be in Treaty form at all. It is simply organizational material that has no effect on the sovereignty of individual Member States and might be implemented by ordinary legislation or administrative action.

The material that does require Treaty amendment could then be identified separately. How could that then be presented for ratification?

Some might argue that, at 51 years of age, the European Union is now mature enough to amend its treaties – which are already effectively the EU’s “constitution” - in the same way that States amend their constitutions. States rarely seek to amend their constitutions by presenting a single, very long text containing dozens of different constitutional changes in one document, and then asking that everything be approved as a package, on the basis of a simple “Yes” or “No”.

They usually present constitutional changes individually to their electorates or their other ratifying authorities and allow them to vote on each one individually. A number of constitutional amendments might be presented in a package, and some might be contingent on others, but the electorate or ratifying authority would generally given individual choices. That makes the task of the electorate easier and avoids easy misrepresentation.

Would such an approach make sense as a means of going forward with those reforms in the Lisbon Treaty that do require Treaty amendment, and which are deemed essential?

It might.

It would also involve a lot of new work, and would mean going back to those who have already ratified to present the material in a different form. It would also imply that Member States might “pick and chose” differently, thus adding to the complexity of the way the EU operates. But, on the other hand, it would avoid turning a series of practical reforms into a potentially existential question. It would also make it more difficult to misrepresent what was being proposed.

Could further enhanced EU-wide Democracy be part of a deal to solve the problem? One of the difficulties faced by those of us who campaigned for a “Yes” vote in Ireland was that, while the Treaty contained many good individual ideas, there was no one big democratic idea that grabbed the imagination of the electorate.

The additional powers for the national parliaments, the citizens' initiative and the extra powers for the European Parliament were all valuable and important in themselves, but they did not add up to a really big saleable idea.

It might be possible to make a package of Lisbon Treaty-based reforms even more attractive to electorates, if an additional element of further direct democracy was added.

Many complain that there is not a European “demos” and say that that is why the EU often gets bogged down in compromises between individual countries. A European “demos” will not come about by accident. It has to be created.

In addition to the electorates of each Member State voting directly for the members of their national delegation in the European Parliament, might one not consider allowing the people of Europe as a whole to vote, in a single Europe-wide election, on the question of who should be the President of the European Council or the President of the Commission?  This would not increase the legal power of either office, but it would provide a channel for voters to vote as Europeans, rather than just as members of national constituencies.

A direct election of an EU President, and the election campaign for such a post, would create a real European demos. A European demos would gradually build a collective EU public opinion, and that in turn would make amending EU treaties much easier in future.

It could make the difficulties the EU is now encountering with the Lisbon Treaty a thing of the past.