Can Van Rompuy bypass a referendum?

Herman Van Rompuy wants to avoid a referendum on treaty change. Can he do it?

With European leaders proposing a new treaty to shore up the euro by moving toward fiscal union, storm clouds are already gathering on the horizon. British prime minister David Cameron has indicated his desire to distance Britain from any further centralisation of powers in Brussels. Seeking to get around the always noisy British, Angela Merkel and Nicolas Sarkozy have said the new treaty could, if necessary, apply only to the seventeen members of the eurozone, rather than the entire EU.

But even that is going to be hard sell.

European Council president Herman Van Rompuy considered the plans yesterday. While mulling it over he no doubt cast a glance westward, because one small, marginal and put-upon country on the Atlantic fringe of Europe could scupper even this lesser treaty: Ireland. Due to a 1987 Irish supreme court decision any amendments to the country's constitution – and moves to formally centralise fiscal policy in the hands of European institutions surely meet such criteria – must be put to the will of the people in a referendum.

As a result, Mr Van Rompuy's office has come up with an alternative plan to move toward fiscal union without facing national parliaments or the public via a passerelle clause. A leaked European Council document I received last night flat out states alternatives to going down the constitutional convention route. The cost is, the measures allowed to be passed via a passerelle will not amount to the kind of treaty change Ms Merkel wants.

Not traditionally eurosceptic, at least not in the sense understood by Britain, Ireland has all the same twice rejected EU treaties as not being in its national self interest, first the Nice treaty in 2001, and then the Lisbon treaty in 2008. In both cases Irish governments managed to force through second referendums a year later, eventually winning. But could it manage the same trick a third time?

The uneasy coalition of right and left that fought against the Lisbon treaty, in part because they saw it as a "self-amending" treaty due to the proliferation of passerelle clauses, is already gathering.

Businessman Declan Ganley, widely reviled by the Irish political establishment for his campaigning against the Lisbon treaty in 2008 and 2009. Ganley's pan-European political ambitions floundered at the polls, with his Libertas party failing to make a dent in the 2009 European parliament elections, but the fact that he couldn't muster a positive vote doesn't mean he can't rally another negative one. Ganley has already objected to the move in the most vociferous terms.

Meanwhile, Ireland's left, composed of Sinn Féin and the United Left Alliance, has said it will consider challenging any move toward fiscal union via passerelle in court.

If the measure is put to people it will be a very hard sell. After all, with all of the mainstream political parties, the majority newspapers and media outlets supporting it (not to mention bent rules on fairness stacking the deck in favour of the Yes side) it still took two runs to frogmarch the Irish into doing what they were told.

There is recent form when it comes to the Irish saying No. A referendum asking if Ireland's parliament should be given powers of investigation, something most Irish people are in favour of, was defeated on October 27 as the wording of the measure suggested the parliament would be given too much power to slander citizens not convicted of any crime. Another referendum, held on the same day, giving politicians the power to cut judges' pay passed with ease. Politicians, academics and journalists regularly bemoan the lack of interest in politics among the public, but the reasoning on display in the former suggests the Irish public is, in fact, incredibly sophisticated in its responses to complicated initiatives, even if the latter result could be described as being the result of a simpler question more in tune with the popular mood.

This is precisely the kind of sticking point a new or modified EU treaty could live or die by. Most Irish people don't want a withdrawal from the euro, fearing a return to the pound would result in a collapse in living standards, but they have also shown themselves to be sticklers for detail.

What any new treaty will have to overcome is a public bloodied by harsh austerity budget after harsh austerity budget in a nation only ever conditionally pro-EU, a public worried about the detail of any changed treaty. Finally, a public keen to respond to questions from government with 'if you don't know, vote no'.

Little wonder then, that the European Council is reaching for its passerelle…

Image by William Murphy. CC licenced.