There is ample evidence of the serious negative effects of the Referendum held on the Lisbon Treaty on the perception of Ireland abroad. Few could understand what we had done and who could blame them. These likely negative consequences were identified clearly before the vote even took place and it is hardly surprising that the result was incomprehensible to many Europeans. After all even on the most self-centred non-idealistic basis Ireland has gained a great deal. In economic terms on a per capita basis, the Irish people gained far more in direct financial benefits from the European Union than those from any other State. Furthermore we provided ourselves with a seat on a table where we could exert some influence regarding the great issues of our time.

And this was a Treaty that appeared devoid of issues likely to raise controversy at least to the minds of nearly everyone else. For me and for many Europeans, far from going too far, the Treaty did not go far enough. Apart from this our entire economic strategy was predicated upon European integration and breaking loose from our prior economic dependence on Great Britain. Without the completion of the Internal Market providing for free movement of goods, services, capital and people we would never have created the 80% of additional jobs in the last fifteen years that were created. These were largely the result of inward investment in industry. As the Minister for Foreign Affairs recently pointed out the stock of foreign investment in Ireland has increased by 400% since 1993. This clearly could not have happened if we were not in good standing in the EU and will not happen in the future if we are seen to be negative to the whole project.

So the objective reasons for supporting a project overwhelmingly adopted by the parliaments representing 99% of the EU population of about 500 million appeared obvious. No doubt many foreigners asked themselves the question: was Ireland’s choice an extension of the type of euro scepticism so evident in Britain? Had we been persuaded to join those who simply do not wish to share sovereignty and indeed rejected sharing of sovereignty in principle? This does not appear likely. For one thing any examination of Europoll data over the last ten years establishes quite clearly that the Irish people express themselves to be fervent believers in European integration. This is in direct dramatic and consistent contrast to opinion in the United Kingdom. In fact, on most counts, we are the most pro European of all the Member States of the EU whereas the British are the least in favour of European integration.

So if generalised opposition to the European project did not drive the dramatic vote against the Treaty what did? After all the Irish people not merely rejected the Lisbon Treaty they did so in the teeth of the strong advice of all the political parties other than the tiny rump provided by Sinn Fein and Libertas. They rejected too the overwhelming support of business and largely that of the trade union and agricultural lobbies also. Before going further perhaps we should attempt to answer why.

First of all it must be recognised that a Treaty of this complexity is not easily put to the people. It is complex of necessity because if it did not seek to cover everything in detail even more absurd interpretations than those to which we have been subjected would be advanced by opponents. So this complexity paradoxically is the result of attempts to be clear and unambiguous. If it were a document containing simple statements it would undoubtedly be attacked as a Trojan Horse through which all sorts of alleged mischief could be introduced. It would be argued that the document would permit interpretation by the European Court of Justice that would greatly enlarge the competences of the EU institutions beyond those ostensibly intended. The complexity too is inherent in a project that contains elements of Federal and elements of the Confederal. It is in part supranational and in part intergovernmental and will remain so.

Recognising the difficulty of having a referendum on such a text, every other Member State wisely decided that parliamentary democracy should provide the ratification method. All the other 26 Member States foresaw the mischief that could be made in a popular debate about a Treaty that, in reality, did very little more than increase the efficiency of a Union that needed reform (particularly because of enlargement to twenty-seven members). However the Treaty was subject to rigorous debate in all the parliaments of Europe and, at the end of the day, the opposition was generally paltry. For example, in that most fractious and divided of parliaments of Italy there was not one vote against and only six against in the Spanish Cortes. One of the great arrogances of some of our commentators has been to suggest that we alone should take this as an opportunity to “represent the people of Europe who might otherwise have voted ‘no’”. What arrogant nonsense that is. Others have chosen their constitutional methodology and I have seen no riots on the streets of Europe about a Treaty that governments and indeed oppositions almost everywhere overwhelmingly supported. The only headlines were about us and, as has been made clear in numerous articles and commentaries, there was very little sympathy for our position anywhere other than in some predictable quarters in the United Kingdom. We had a referendum because of the Crotty judgment of the Supreme Court.

It seems clear that the Treaty would have been passed in the first referendum if the issues of corporate taxation, neutrality and abortion had not been introduced as substantive matters. The fact that ridiculous arguments without real substance could gain such traction is an indictment of the level of public debate here. The arguments were repeated ad nauseam during the campaign that threats were posed in these areas. These were fully answered. The answers were clearly viewed as being less than adequate or, alternatively, were not adequately explained although this is very hard to fathom. For one thing the fact that there was no threat was fully answered by the main political parties and, finally, by the independent Referendum Commission under a High Court judge who clearly and unambiguously dealt with the matters that I have identified. Of course there was one other big issue namely the rotational membership of the European Commission which has now been changed at our request. The basis for that request was questionable for some (certainly for me) but it has now been achieved and everybody else has altered their position because of Ireland’s intervention.

In my opinion one reason for the public’s confusion was the result of the fact that the national broadcaster RTE treated the arguments as if equal credibility attached to each side whereas virtually no respected and knowledgeable academic or political analyst would have recognised as real the threats that were so stridently proclaimed during the campaign.

In addition practically all of the political parties in the State were crammed into 50% of the air time thereby opening up a void of 50% of the time to go to, largely, Sinn Fein and Libertas. It was the interpretation of judgments of the Supreme Court that led to this situation.

Section 18 (1) of the Broadcasting Act 1960, as amended, requires all news broadcasts by RTE to be “reported and presented in an objective and impartial manner”. Everyone would surely agree with this requirement (which also applies to current affairs broadcasts). I certainly do not disagree with it. The Coughlan judgment condemned an 80%-20% division of airtime for uncontested party political broadcasts on the divorce referendum as being unfair and unlawful. However more generally whilst ‘equity’ is required Justice Denham actually made it clear that equality is not. The Chief Justice made reference to “holding the scales equally” but in current affairs programmes all that is required surely is to be fair having regard to the merits of the case. This might dictate that each side be given the chance to have its say or that its position not be mis-represented. This should not mean however that every time one side expresses a view the other is to be given an opportunity to provide a riposte even though that riposte is principally without foundation as was the case with the issues I identified earlier. In the event that one side (or part of one side) of a referendum campaign is making claims that cannot be substantiated in fact or in law it is not unfair to that side, nor is it partial, to conclude that the claim in question is unsubstantiated and to act accordingly by not giving it equal air time. That is what editorial responsibility is all about. The fact is that by adopting a policy of deference to unjustified arguments just because they were made in a referendum campaign there would necessarily be a failure to be fair to the side not making unsubstantiated claims. Coughlan was concerned with a particularly blatant case of lack of balance. Nothing in the judgment requires what happened during the last referendum campaign in the provision of uncritical coverage to arguments that in some cases were without any substance. In addition there was a trawling of the high-ways and bye-ways of Ireland and Europe to find spokesmen for the ‘no’ side. Those, in some cases, have been presented here as if they are significant and authoritative political figures or economic actors but they were anything but. They were in some instances marginal figures in their own countries and yet were presented here as being authoritative. They were put forward simply as part of a balancing act that appeared to require a strict compliance with some 50/50 criterion that neither demanded nor received any editorial judgment.

Of course none of this issue of balance applies to the print media. Many British titles with wide circulation in Ireland have run deliberate, consistent and massive campaigns for the no side. Their editorial policy in the United Kingdom has been the same over the years. They are vehemently Euro sceptic and nobody denies their right to be so however much more balance might be desirable but they also make ridiculous arguments about the creation of a super state without any substance. This too provides some explanation for the result of the last referendum.

Another judgment that has not helped is that by the Supreme Court in McKenna v An Taoiseach (no.2). In this case the majority held that expenditure of public funds on one side of a referendum campaign breached the constitutional right to equality. This judgment has not merely been interpreted as inhibiting but actually as precluding the government from spending any state funding advocating a yes vote in a referendum proposed by the government elected by the People. This seems to be an unwarranted interference with the government of the country. As Justice Barrington said in Hanafin v the Minister for the Environment, “The Government is (not) merely the Chairman of the debating society”. He also said “Politicians who think that the Constitution should be amended have the right and duty to attempt to persuade their fellow citizens to adopt the proposed amendment. It appears to me that they are entitled to do this individually as private citizens or collectively as members of a political party or of the government.” I do not think that a government in a democratic state should be as restricted as it is in Ireland and an opportunity should be found to review this situation in the future.

It is worth bearing in mind that we have had numerous referenda on EU Treaties. In recent years the Single European Act, the Maastricht Treaty and the Nice Treaty provide examples of strident opposition from tiny minorities in Ireland creating great confusion. Who now even remembers the points on which this opposition was based? What were the apocalyptic visions that they shared with our citizens and how is it that none of their dire forecasts came to pass which created anxiety for many of them?

This time the government has done an excellent job in persuading our partners to agree to a lucid and clear protocol that finally, one might hope, lays to rest most of the debate. However, incredibly some of the older arguments are surfacing again. For example, the argument that the Foreign Direct Investment Strategy of the State will be interfered with by the Treaty which is simply untrue.

It is good to record that this time round we will have an organised group of lawyers engaged in the debate and Donal Barrington and Bill Shipsey are to be commended for their initiative.