 The history of the European project has thrown up the issue of referenda as a substantial issue in a number of countries, but nowhere remotely comparable to our own. Thus, only 14 of the 27 existing members even have the referenda to join the European Union, let alone the plethora of referenda that we have had in regard to various amending treaties. The United Kingdom, of course, held a referendum subsequent to joining on whether they should stay in, or depart, and may indeed have another one. We've taken, as we all know, a different course, as is our right. We have had nine referenda on seven treaties. Nobody in Europe has anything comparable to this record. The Danes are the closest that come to it. They've had six, including two repeats. As we know, the history of referenda in this country has been a tortuous one. We've been dispiriting for those of us who believe in Ireland's place at the heart of Europe, at the heart of an ever closer union of the peoples of Europe. Our fellow members have, on more than one occasion, been required not merely to witness our travail, but to recognize that if we finally said no, treaties that they considered vital for their future would have to be discarded. Now, there have been others, of course, who have famously failed in referenda as well. The treaty establishing a constitution for Europe, signed in October 2004, didn't come into force. The Dutch and the French declined to ratify it. Some people say in part because it was simply called a constitution for Europe. But the history of our difficult engagement in the process of treaty change has been very hard, as many in this room know, to explain to our partners. For we're not seen as Eurosceptics, and Eurobarometer polls consistently from the moment of our accession to the present day appear to confirm that we're believers in Europe. And yet, we have thrown or attempted to throw a spanner in the works from time to time that less than 1% of the population of the European Union could stop its progress in terms of the integration to which we all signed up and which is stated in the Treaty of Rome itself has been mystifying to others. Some of those who have opposed the treaties here that have been presented to the people have presented themselves, indeed, with a certain arrogance, one might say, as saviours of the other peoples of Europe who have not been given a vote. Or so it has been said. The surprise evinced at our results was compounded by the apparent contradiction and implicit in our public proclamations of our European destiny. And yet we have said no before our changing our minds when the enormity of what we had done became evident to us. Reference has been made to the fact that we passed, by a substantial majority, a physical compact, a debate which, like so many others, was distorted by extreme interpretations of what might result and of which, in this case, as in all others, never did. And yet we passed it by 60% to 40%. Perhaps John referred to the blackmail clause. Perhaps that's precisely why there was no difficulty in passing it, because there was a price to be paid for saying no. With others we could cock a snook at the world and pass, we thought, beyond without great difficulty, because we had the right to say no. And there was no price, apparently, for saying no. So it's an appropriate moment, 40 years after our accession to the European communities, to question why this has happened and whether it is right that it has happened or whether, in some way, what has happened should not be allowed to happen in quite the same way in the future. I want to focus today somewhat on the legal aspects of this. I think it's appropriate, myself, to have referenda on vital issues like joining the European Union. I think, perhaps, like the Lisbon Treaty or the Maastricht Treaty. But even in those other ones, I'm not so sure. Incidentally, the Lisbon Treaty was the subject of an exhaustive examination in the Karlsruhe Court, the German Supreme Court, Federal Court. And the judges approved the treaty. It may be said that the judgment, while it's not without grounds for criticism of what had happened, didn't require a referendum in a state with a vigorously independent judiciary and a vigorously independent legal frame of mind. So how did we uniquely find ourselves required to have referenda on the treaty changes that have taken place? John referred earlier to Crotty. And Crotty is the key. In the judgment of the Court in Crotty, Vientischek, on Title II of the Single European Act, which was the part of the Single European Act, which introduced, for an example, majority voting, previously unanimity was required, and therefore removed what might be described as a veto in a whole range of areas relating to the completion of the internal market. This was something which might properly be described as a clear change in terms of the limits of sovereignty. And yet, the judgment of the Court, and that means the whole Court on that issue, was that this did not call for or require a referendum. It was stated that the original amendment passed on our accession should be construed as an authorization given to the state, not only to join the communities as they stood in 1973, but also to accept amendments so long as they didn't alter the essential scope or objectives of the communities. Now, it's in my case that those words, the essential scope or objectives of the communities, when taken in conjunction with what the communities are now after the authorization contained in the Lisbon Treaty and the other treaties that we've endorsed since, including Maastricht, leads us to a situation where we can, with some confidence, look to any foreseeable treaty changes, for an example in the issue of monetary union, if that were to arise. But generally on monetary issues, I would say that it's very arguable that there is no need or will be no need for future references to the people. The clear parameters of where we're going and what is implicit and explicit in having a single currency should be clear enough. In fact, one can argue that the fiscal compact is no more than is what is absolutely required if you have a single currency. You cannot have individual states playing fast and loose with a currency with which they share with others. You don't have to be an economic genius to see the necessary implication of what is meant in having a single currency. You can't have currency in a part of a currency area playing fast and loose with deficits and debt. Ultimately, the cost falls on the balance sheet of all. Amongst the provisions, therefore, that I've mentioned that were in the single European Act and which were declared not to require a referendum, a subject which I think has been largely forgotten ever since, are the vital areas that I mentioned, but not merely those. They also dealt with economic and monetary policy up to a point, social and economic cohesion, social policy, the amount that you pay into the community budget and various other issues directly touching on national sovereignty. What the Supreme Court did in Crotty, and which everybody has some sort of removed recollection as being the cause of the requirement of all subsequent referendum, was that it struck down Title III. Title III dealt with foreign affairs. In this, the Supreme Court was, in my view, clearly wrong. Any political scientist of any repute would tell you, without blinking an eye, that sovereignty is not ceded in the area of foreign policy in the European Union. Nobody can deny it, and even in the United Kingdom, not the most positive or constructive engagee in debate on treaty change, there was no difficulty at that time with the foreign policy provisions. No great argument about this causing a loss of sovereignty. So we were virtually unique in finding this terrible and dangerous impediment to our future independence of action. But in his minority judgment, the Chief Justice, Mr. Justice Finley, put the point pretty clearly in his dissenting judgment. He said these provisions do not impose any obligations to cede any national interest in the sphere of foreign policy. They do not give other parties any right to override or veto the ultimate decision of the state on any issue of foreign policy. Explicit and clear and absolutely corroborated by subsequent events. Europe couldn't even get its act together on the Iraq war. They split, they went different ways, and on so many other issues. Nobody can be compelled in foreign policy and you may say that's correct, it's the way it should be or you may not, but nobody can be compelled by a majority view to follow a particular foreign policy direction. So that this should be the cause of all of our subsequent referenda is a matter which some of us may question. Majority judgment on Title III has led to serious consequences, therefore, as we all know, and that has remained decisive for 25 years. Its effects have been damaging and considerable, not least in that it has propelled successive governments in the negotiation of subsequent treaty changes to take an extreme minimalist view as to what we, our self-proclaimed great Europeans, believed could be done to push forward European integration. Let me take one example. We were formidable advocates for the proposition that the Commission should contain a member from each state. In recent days, the 27, incidentally, is now being pushed up to 30. Those who understood the issue properly might well have argued that a small commission with the rotating rights that were on offer which gave a small little state like ours a far greater rotating role relative to others and those others, the bigger ones, were prepared to cede on this was and is damaging, seriously damaging to the commission. The commission today, unlike the commission of which I was a member, never meets effectively for more than 30 minutes. We had day-long debates. I myself pushed numerous acrimonious votes on competition policy, disagreeing as I did often with the president of the commission and winning some of the votes. But we had a serious attempt to develop policies and everybody knew that they were doing it in the common interest. The nationalization that has followed from the position which we pushed and I don't think any political party disagreed with here as far as I can remember has been a serious erosion of the most important element in the supranational identity in my view with the European Court of Justice in the whole construction of Europe. We need a commission that's independent. So I think it's very worrying. John referred to Pringle stealing it from my speech again but I believe that. But what I will say is this. The Treaty of Westphalia of 1648 is something which set out the independent nature of nation-states. We're beyond that. And if we have any sense as a people, we will recognize that as Irish people we need an integrated Europe. Otherwise we're a marginalized island floating off the west coast of a continent. And this to my mind is extremely worrying. So I hope it's revisited and quickly by the Supreme Court and if we're having amendments to the Constitution I should also say it might be no harm to have an amendment in the Constitution which would allow the government and not just the president to refer to the Supreme Court legislation to test its constitutionality in advance rather than being so intimidated and fearful that after a treaty has been ratified and comes into force somebody to bring a court case and that the court case will in some way cause us to have to revoke a treaty which everyone else is already enforcing. It's time we really gave thought to this. Instead of avoiding issues and avoiding the development of the European Union in which we believe by being afraid of referenda, understandably afraid, I can understand politicians not wanting to have to deal with the incredible debates that have taken place here in the past with arguments which everyone forgets the minute the referendum is over. But if they were ever revisited that we were going to lose our neutrality we'd be part of a military bloc against Russia or against somebody I don't know who it was that we were going to be subject to an immediate taxation policy a divestiture which would destroy our capacity to attract foreign direct investment because of the treaties and conscription not to be forgotten that famous old story which this is what has affected national debate and it's all very well to say that we must be concerned about elites. John mentioned it. Who are elites? We've a 271 page document the Treaty of Lisbon. How can a 271 page document which is analysed and produces all sorts of weird theories as to what it contains be something that is helpfully debated in this context. It can't be. That's the truth of it and everybody here in this room knows it. You have to have in the end of the day with some issues. Some issues are black and white but some are very definitely more complicated and important though the referendum commission has been in helping to improve this matter it's not something which is answered by that issue. So, I would finally like to mention two other points there are two other issues which have interfered with referendums in this country. In the McKenna judgment principles such as equality under Article 40 fair procedures and respect for democratic process were called in age to reach what the court believed was a justifiable conclusion. This is a conclusion which clearly the court is not going to revoke because it has reiterated it recently in McChrystal. So, whilst I rail against the wind I know that I am not going to be able to change or argue for a change but let me say something. As things stand the government cannot use public funds to support its position in a referendum. Two very famous legal men who railed against the original judgment in this were the ones who had direct political experience Declan Castillo and T.F.O. Higgins both of whom said this was ludicrous interference with democracy. But now if money is to be spent from state funds at all it has to be shared equally with two sides. Let's assume as was the case in the children referendum that virtually every member of every parliamentary party in the Dahl is in favour of one side and a tiny minority somewhere is against it. Equal sharing of resources. Well, some people say that it wouldn't actually come to that but it has been coming to that. How can the people be other than confused as a result of all of this? As I said, if one no vote had been upheld in our various and in our torturous as I said progress through ratification of referendum we would have stopped Europe in its tracks. We could actually have derailed the whole process of what to me is the most noble project in the history of Europe. In a thousand years of history based upon the principle of sharing sovereignty one conclusion one might draw is that the Supreme Court has defined the constitutional principle of equality in a manner which is excessive and in conflict with the separation of powers. Compounding however the decision in McKenna is the majority's ruling in Cochlan via the Broadcasting Corporation Co-Complain Commission. There are arguments in favor of McKenna. One can understand and it may be absolutely held that if you have a government using all the state resources to push one side in a referendum you get a distorted outcome and that this isn't right either. Now there are a lot of places in between in other countries for an example that are particularly concerned with this issue they have regard to the breakdown of parliamentary support in determining how much goes to one side or another in a debate. But Cochlan has a very wide application. It has been interpreted as requiring broadly equal time to the protagonists on either side of a referendum debate. We've all seen it. Even if the majority judgment in the case didn't actually require such a division it was not indicated by that judgment what sort of division would be appropriate and naturally, or TE, thinks that the best way of dealing with this is giving it 50-50. So every discussion, everything else, every broadcast is equal. The law I think correctly requires impartiality and fairness on the part of the national broadcaster both under legislation and the Constitution but to go so far as to require broadly equal equality for both sides of the debate is surely an unwarranted interference. If has been the case the three largest political parties in the state are in favor of a yes vote are they to be compressed in debates on an issue into roughly 50% of the time thereby permitting a mixture of individuals and smaller groups or again in theory just one individual to have equal time. This in my view is quite wrong. A very eminent jurist Dr. Blana Rouhan of UCD wrote the application of McKenna two principles in Cochlan reinforced some of the problems caused by the removal of government funding in favor of the proposal. It gives, she said, a potential publicity bonanza to small groups opposing the proposal out of all proportion to the actual support the group reflects. This encourages opposition not for the sake of principle and opposition but for the sake of getting exposure for extraneous purposes, in other words to the purpose of the discussion for the people. This to my mind is something that really needs to be revisited. Legislation responded to these issues by establishing a referendum commission and that is to be highly admired and the effect of the referendum commission has been very positive and has undoubtedly improved the situation by providing a means for the clarification of the meaning of a proposed amendment. Maybe it deals with some of the issues that I have been referring to but not completely. It has resulted in further litigation and in my opinion this matter has to be clarified and dealt with further. So the effect of the result of the judicial interventions that I've referred to I think has been to create distortions rather than improvements in some respects in the processes of democracy in this country. I'm mindful of the fact that we have to ensure that the people are fully consulted on vital national interests where that is appropriate by referendum. But we have to also recognize that a referendum is a very blunt instrument for the discussion of torturous issues. It's not easy to rely on a national debate when the simplicities of much public debate reduce the arguments to the banal from the complicated and sophisticated. And I think we would do well to recognize that there are other democracies in Europe. Some of them much longer standing than our own and none of them have taken the roots that we have taken when you combine the issues that were described. Not one. Does this suggest that we're right and everyone else is wrong? I think that we need to look very seriously at these issues. Now, on the positive side to conclude I'm going to say that we can, I think for the moment at least, discuss them with relative tranquility in advance of an issue with respect to the people. I'm doubtful as to whether another treaty is in fact going to be required. I think that the instruments that already exist notwithstanding the concerns of Germany in regard to banking union are covered and can be dealt with within the array of instruments which John referred to that already exist, the fiscal compact, the six-pack, the two-pack and so on and so forth. We already have a large number of instruments which had they been in existence when the Maastricht Treaty was adopted might have avoided landing us in the terrible mess that we're in today. The problem with Europe today is in conclusion not that we went too far in Maastricht and didn't go anything like far enough and I suspect that even in that debate at the time our politicians may at least in a quiet way have been applauding the minimalism rather than criticizing the fact that we had not gone far enough. Thank you very much.