A treaty too far?

 

HERMAN VAN Rompuy’s idea to use provisions already in the Lisbon Treaty to amend and toughen the treaty’s budget supervision protocol has immediate appeal. And not least for Ireland where treaty change has been, well, awkward. Faced at tomorrow’s summit with Franco-German demands for treaty changes to lay the basis for fiscal union, the European council’s president has reminded leaders of legal mechanisms in Lisbon that allow the amendment by the Council, acting unanimously, of the treaty’s budget control implementation procedures.

Using this procedure should in theory both achieve his and their purpose, while obviating the need for cumbersome ratifications in 27 capitals, dramatically shortening the process, and, crucially, reassuring markets.

What is not yet clear, however, is whether the scope of changes sought by France and Germany will go beyond the matter covered in the protocol, and hence beyond the possibilities of the simplified amendment procedure.

There is also the political reality that Chancellor Merkel may believe she needs a treaty, whether in substance any different, to sell, at home, the package involving an expanded ECB role. From an Irish perspective, however, the Van Rompuy approach has clear advantages. But there is an unseemly quality to repeated declarations by Irish ministers that this State does not want to be forced into another referendum. Badly burned over Nice and Lisbon by an electorate that would not be taken for granted, the repetition of the “no referendum” mantra sounds rather too like determination to avoid democratic accountability and, once again, defeat.

Yet, the fear of rejection notwithstanding, the legal requirement to hold a referendum on changes in our relationship with the EU is by no means absolute. In signing up to the Treaty of Rome we incorporated in our Constitution a provision (article 29) recognising the constitutionality of future “laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities”. Those words, the Supreme Court recognised in the Crotty case (1987), “must be construed as an authorisation . . . not only to join the Communities as they stood in 1973, but also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objectives of the Communities”. In such circumstances – and a consolidation of monetary union discipline would certainly seem to be covered – a referendum is not legally required as such changes would be deemed consistent with the Constitution (in the case of treaty changes approving new accessions to the EU, we have never bothered holding referendums).

In reality, the commitment to hold referendums on EU treaties is now as much a political as a legal obligation, a hook politicians have impaled themselves on, and are understandably keen to get off. Whatever one’s views on “plebiscitary” democracy, and there are strong arguments against, an overzealous resort to referendums is clearly neither a constitutional necessity nor consistent with efficient management of the State’s affairs.