Will a battery of legal guarantees and political assurances convince the Irish? asks Jamie Smythin Brussels
TAOISEACH BRIAN Cowen arrives home from an EU summit today armed with a battery of legal guarantees and political assurances that he hopes will persuade the Irish public to support the Lisbon Treaty in a vote next year.
Following a gruelling two days of political negotiations in Brussels, he claimed a major success for Irish diplomacy, noting that all the Government's key objectives had been met.
On one point, namely workers' rights, he didn't get the type of legal clarity he had been seeking. But there was a commitment from EU leaders that Ireland can use the EU accession treaty with Croatia to meet concerns over neutrality, abortion and taxation - a concession that may offer the type of cast-iron guarantees that help to change people's minds about Lisbon.
Presenting his wishlist to his fellow European leaders on Thursday evening, there was initial optimism that the draft conclusions drawn up by the French presidency with the input of Irish officials would be accepted in full.
The most contentious issue in the lead-up to the summit was undoubtedly the Irish demand that all member states should retain their commissioner post-2014 if Lisbon enters into force. Opposition from Belgium, the Netherlands and Luxembourg had been well-flagged in advance, and Belgium prime minister Yves Leterme repeated his fears the measure would weaken the EU executive and disturb the institutional balance in Lisbon.
But with French president Nicolas Sarkozy determined to get a final deal on Lisbon during his six-month presidency of the EU - and an acknowledgement that Mr Cowen could not win a second referendum without the concession - the commissioner issue was agreed despite a little grumbling from his counterparts.
The quid pro quo for providing this guarantee to the Government was made clear by other leaders.
"The message from this summit to the Irish is clear. If they vote Yes to the Lisbon Treaty, they can keep their commissioner. If they vote No, they can't. That's just the way it is, because, without the new treaty, we cannot decide to keep one commissioner for each member state," said Danish prime minister Anders Fogh Rasmussen referring to the rules in the Nice Treaty, which say the number of commissioners is less than the number of states.
Under the upcoming Czech presidency, which begins in January, work will begin on a formula to reduce the size of the commission in the event a second referendum is lost. Few diplomats doubt Ireland would be the first state to lose the right to appoint a commissioner if Lisbon cannot come into effect next year.
Irish concerns over taxation and ethical issues such as abortion will be addressed through legally binding protocols under the formula agreed yesterday. The conclusions are that "the necessary legal guarantees" will be given to ensure nothing in the treaty: makes any change of any kind to the extent or operation of the union's competence in relation to taxation; prejudices the security and defence policy of member states, including Ireland's traditional policy of neutrality; or affects the provisions of the Irish Constitution concerning the right to life, education and the family.
This last guarantee refers specifically to the legal status conferred on the EU charter of fundamental rights through the Lisbon Treaty, which No campaigners alleged could affect national law.
The EU seemed to have little difficulty in providing guarantees in these areas, principally because they feel the Lisbon Treaty would have absolutely no effect on these issues. But an Irish proposal to provide legal guarantees in the area of social rights, principally workers' rights, met with fierce resistance from Britain. Britain, negotiated its own protocol to Lisbon to ensure the charter of fundamental rights could not override British domestic law in the area. British foreign secretary David Miliband told journalists that giving workplace rights concessions to the Irish could have led to demands to re-open debate on Lisbon. "We had to avoid a situation in which the guarantees to Ireland on the treaty did not lead to a situation in which we were opening up the treaty," he said. "We did not want to be in the position where loose language was used that could open up the treaty."
The final summit conclusions now offer the Government assurances on social and workers' rights, rather than any legally-binding guarantee. This could take the form of a declaration attached to the Lisbon Treaty highlighting the importance of social progress and the protection of workers' rights.
But this would not be justicable by the European Court of Justice, which is a key demand of trade unions angry at recent judgments they believe have weakened workers' rights.
Mr Cowen said the charter of fundamental rights, embedded in Lisbon, would boost labour rights and added the Government would pursue other legal avenues at EU level to address the issue. But the key test of these guarantees will be debated by trade unions in the run-up to a second referendum in the autumn.