Twenty-eighth Amendment of The Constitution Bill 2008 (Ireland) - Second Referendum

Second Referendum

In the meeting of the European Council (the meeting of the heads of government of all twenty-seven European Union member states) in Brussels on 11–12 December 2008, Taoiseach Brian Cowen presented the concerns of the Irish people relating to taxation policy, family, social and ethical issues, and Ireland's policy of neutrality. Effectively Ireland's position was renegotiated, and the revised package was approved by the electorate in 2009. Because of the 2008–2010 Irish financial crisis it was also apparent that Ireland would need increased financial support from the European Union.

The European Council agreed that:

• the necessary legal guarantees would be given that nothing in the Treaty of Lisbon made any change of any kind to the Union's competences on taxation for any member state;
• the necessary legal guarantees would be given that the Treaty of Lisbon did not prejudice the security and defence policy of any member state, including Ireland's traditional policy of neutrality;
• the necessary legal guarantees would be given that neither the Treaty of Lisbon (including the Justice and Home Affairs provisions), nor the EU Charter of Fundamental Rights, affected the provisions of the Irish Constitution in relation to the right to life, education and the family in any way;
• in accordance with the necessary legal procedures, a Decision would be taken to retain Ireland's Commissioner, provided that the Treaty of Lisbon was ratified;
• the high importance attached to issues including workers' rights would be confirmed.

The Irish Government then committed to seeking ratification of the Treaty of Lisbon by the end of the term of the current European Commission (October 2009), provided that the above were implemented satisfactorily.

The European Council did not specify what forms the legal guarantees would take. The Sunday Business Post stated that what the European Council had offered were Decisions and/or Declarations, not protocols. Decisions and/or Declarations of the European Council are agreements made between all twenty-seven member states of the European Union and are not part of a treaty, whereas protocols are agreements between states as part of a treaty. Previous examples of Decisions and/or Declarations following a referendum rejection include the 1992 Edinburgh Agreement (following the first Danish referendum on the Maastricht Treaty) and the 2002 Seville Declaration (following the first Irish referendum on the Treaty of Nice). French President Nicolas Sarkozy, speaking to the European Parliament in his capacity as President of the European Council during the six-month presidency of that body by France, stated that the legal guarantees would be added as a protocol later to the treaty, enabling Croatia to join the European Union legally.

The guarantee that Ireland would keep its Commissioner provided Lisbon was ratified was criticised in the Irish Times on the grounds that it may lead to an oversized European Commission.

The Treaty of Lisbon was ratified by the Twenty-eighth Amendment in October 2009.