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This article is by an opposition Fine Gael Senator, Eugene Regan.  
Superficially it seems a reasonable approach but only if one ignores 
the undoubted fact that the whole Lisbon Treaty has been put to a 
referendum and it was the whole Lisbon Treaty that the Irish people 
have said NO to.  Therefore, however much the lawyers trawl the 
entrails of the subject, this proposal suggests the politicians 
should ignore the people's wishes.  This is not something that would 
be seen as a popular move by the very self-same people who are being 
snubbed.
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IRISH TIMES   10.9.08
Finding a way out of the Lisbon deadlock

Taoiseach Brian Cowen during the failed campaign for a Yes vote on 
the Lisbon Treaty this year. Instead of putting the whole treaty to 
the people again, the Oireachtas [parliament -cs] could ratify that 
part of it which does not involve change to the Constitution. The 
people could then decide on any changes to the Constitution to which 
the treaty gives rise.

OPINION: A mixture of a referendum, Oireachtas votes and opt-outs 
might provide a solution to the Lisbon Treaty problems, writes Eugene 
Regan

THOSE WHO interface with Europe at the political level fully 
appreciate the fallout from the Irish No vote on the Lisbon Treaty 
and the need to act. Those who voted No will not admit that we have a 
problem. The implications for this country of that No vote are not 
readily apparent and to date there have been no perceptible negative 
consequences. But the reason for this is that the EU expects the 
Irish Government to resolve the current impasse.

What has become apparent is that Ireland and its referendum process 
is now an obstacle to the standard method of EU integration, which 
involves periodic amendments of the existing treaties. If this proves 
to be a continuing obstacle Ireland will be seen as responsible for 
the fragmentation of the EU. This may involve further development 
taking place through enhanced co-operation within the EU or through 
new spheres of activity outside the EU framework. Alternatively, 
integration may proceed without Ireland.

The argument of the No campaign has been that there should be a 
renegotiation. This can take the form of renegotiation of the treaty 
itself or the extent of Ireland's acceptance of the treaty. As to 
whether a wholesale renegotiation is likely, the continuing process 
of ratification [wth the people elsewhere nowhere being consulted -
cs] by other members states would seem to suggest that it is not.

Lisbon would, in fact, facilitate one important change: that of one 
commissioner per member state. As regards renegotiating the extent of 
Ireland's acceptance of Lisbon, other member states are likely to be 
accommodating. Clearly, assurances in the form of a declaration on 
such issues as abortion, tax and neutrality would be forthcoming, as 
would agreement on requests by Ireland for opt-outs from Lisbon.

The question is where we go from here. As we move tentatively towards 
a second referendum on Lisbon, although no one yet admits it is on 
the way, we should consider how that referendum should be conducted 
and begin by re-examining our referendum process.

In doing so we need to address two issues. Firstly, referendums in 
Ireland are for the sole purpose of amending the Constitution, not 
for ratifying international treaties per se. Secondly, one of the 
main reasons Lisbon was rejected was that it was simply too complex 
to understand.

Bearing in mind that the Oireachtas, under articles 29.5 and 6 of the 
Constitution, has the right to ratify an international treaty that 
does not interfere or breach the Constitution, I believe we need to 
identify those elements of Lisbon which raise constitutional issues. 
We must then examine whether or not any such constitutional element 
is already covered by previous Irish referendums.

All constitutional issues which arise and are not already covered by 
the constitutional licence given to the Oireachtas by previous 
referendums approving membership of and changes to the European 
Community and the European Union, should be the subject of specific 
questions in any new referendum. If approval were not forthcoming on 
these specific questions, then the Oireachtas would seek to exercise 
opt-outs in those areas and could proceed to ratify Lisbon without 
those elements forming part of the treaty being ratified by Ireland.

This would avoid the need to have a referendum on the entire 300-page 
text of the Lisbon Treaty. Instead, any referendum would now be 
confined solely to questions concerning transfers of competencies and 
issues of sovereignty, which fall to the people to decide under the 
Constitution. Such issues may include the charter for fundamental 
rights, the solidarity clause, transfer of certain matters to 
qualified majority voting and the inclusion of new competencies such 
as energy security, climate change and tourism.

This approach would prevent the diplomatic nightmare of Ireland 
blocking improvements in the EU institutions and measures contained 
in the treaty to which 26 other member states are committed.

At the same time, Ireland would remain a fully functioning member of 
the EU while the choices of the Irish people in the referendum would 
be respected.

In the long term, this would also have the advantage of showing our 
EU partners that not every new issue needs to be put to the Irish 
people in a referendum and, therefore, they need not exclude Ireland 
from future discussions on integration. Nor need they discard a form 
of integration which has served all countries, both large a small, 
very well to date: integration by grand treaty by unanimous agreement.

Given the problem of putting a full treaty to the Irish people, is it 
not the better approach to put specific propositions which are 
intelligible and reasonable? A referendum on specific propositions 
would make for a more meaningful referendum debate.

Accordingly, in order to regularise the situation in relation to 
Lisbon, it is not a question of whether the Oireachtas should ratify 
the treaty or whether the treaty should once again be put to the 
people in a referendum. It is not an either-or situation. The 
Oireachtas should exercise its prerogative in ratifying that part of 
the Lisbon Treaty which does not involve a material change to the 
Constitution. The people should exercise their constitutional 
prerogative in deciding on any changes to the Constitution to which 
the Lisbon Treaty gives rise.

This approach may have to be tested by the courts, but it would 
appear to offer our democracy the opportunity for a more meaningful 
referendum debate; respect for the constitutional framework for 
deciding matters of this kind; and the means of securing our role in 
Europe, even if that entails opt-outs from significant tracts of the 
European integration process.
It involves simplification of the referendum procedure by clarifying 
the decisions on the Constitution arising from Lisbon which the Irish 
people have to decide. Furthermore, it provides a procedure whereby, 
if the people reject changes in the Constitution
necessitated by Lisbon, the Government can still proceed to ratify 
the treaty by excluding those parts which the people have rejected.
What is proposed is a mechanism to deal with the situation we are 
faced with at present, and may face again after a second referendum, 
where a vote against the Lisbon Treaty stymies our membership of the 
European Union.

. Senator Eugene Regan of Fine Gael was elected to the Seanad on the 
agricultural panel. This article is linked to an address he gave to 
the recent Humbert Summer School discussion on the Lisbon Treaty 
referendum