Government can avoid EU referendum nightmare

Thu, Dec 15, 2011, 00:00

OPINION:A REFERENDUM on last week’s EU summit agreement is neither politically desirable nor clearly necessary in legal terms.

Since the decision of the Supreme Court in Crotty v An Taoiseach in 1987, all EU treaty changes, even those such as Nice and Amsterdam that were relatively minor, have been submitted to the people for a referendum.

The Crotty judgment was the result of a three to two split in the Supreme Court in which the minority strongly argued that it was not constitutionally necessary to submit each and every new European treaty to the electorate. Furthermore, in the later McGimpsey case, the Supreme Court appeared to pull back significantly from its reasoning in Crotty.

The Maastricht Treaty, which established the euro, was certainly constitutionally revolutionary and should have been submitted to the people. Last week’s agreement, which adjusts and establishes various mechanisms to ensure the single currency’s smooth operation, is much less so.

Bunreacht na hÉireann deliberately establishes a parliamentary – rather than a popular – democracy. Doubtless aware of the perils of direct rule by the people the Constitution in article 29.4.1 gives the power to make treaties and carry out external affairs to the government which, in turn, must lay all treaties before the Dáil for ratification (article 29.5.1).

Perhaps because of its origins in the 1930s when representative democracy was under severe pressure from demagogic extremists, the Constitution envisages a very limited role for the direct democracy.

Though a referendum is always needed for constitutional change, article 29.4.10 provides that “No provision of this Constitution invalidates . . . acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union”.

Given that, in the absence of an opt-out, EU membership requires adoption of the euro, it is certainly arguable that agreements designed to ensure the currency’s proper functioning can be seen as “measures necessitated by obligations of membership” and are therefore covered by the Constitution as it stands.

Although the UK’s veto means that last week’s agreement will be separate from the EU treaties, the fiscal oversight measures contained in the agreement essentially reproduce the provisions of the Stability and Growth Pact contained in article 126 of the existing EU treaties.

Accordingly, the Government’s ratification of last week’s pact merely requires it to introduce measures into national law that reflect the obligations already imposed by EU treaties that were previously ratified by the people.

In the light of this lack of clarity in relation to the legal situation, the Government should legislate for the measures agreed last week. While a court challenge to such legislation would be inevitable, the Government may well win. Such an outcome would be good for our political system as well as our economic future. Referendums are, quite simply, a horrendous way to take political decisions. Clear-cut, stand-alone issues such as the death penalty or the permissibility of divorce can usefully be debated and decided by popular vote. Complex multifaceted proposals such as a budget or the Lisbon Treaty cannot.

Getting oneself up to speed on the minutiae of budgetary policy and EU governance takes an enormous amount of time and effort. Most citizens, even those who are civically minded, simply don’t have the time or interest in doing so.

In these circumstances, experience has shown that debates on issues such as the Lisbon Treaty are often made hostage to the hobby horses of individual groups which are focused on the impact of one out of a myriad of the issues covered by the relevant treaty.

Worse still, long complex agreements are particularly susceptible to being misleadingly portrayed. In the last Lisbon campaign elements of both sides had to resort to gross simplifications and distortions as it would have been impossible to have a sufficiently “accessible” debate on the broad and largely technical issues dealt with by the treaty.

There is a major danger that a referendum on measures aimed at saving the euro will be, once again, hijacked by groups focused on other issues such as neutrality or abortion. Last week’s deal has many flaws but it should be our elected parliament that decides on whether it should be ratified.

Another European referendum would generate enormous amounts of heat and little light. It would require the public to develop an enormous level of interest and expertise in complex public policy issues even though most people lack the time, interest and ability to do so. It would make key questions of foreign and economic policy hostage to the obsessions of particular groups.

The Constitution deliberately gives almost exclusive conduct of matters of public policy to an elected legislature and the government responsible to it. Direct government by the people is dangerous to minorities and to sensible policymaking. Furthermore, though they have often let us down, we require professional politicians to run our affairs; most of us do not have the time or expertise to acquaint ourselves with the minutiae of public policy.

The Crotty decision was wrong. Requiring a referendum for each and every EU-related treaty change is inconsistent with the Constitution’s commitment to parliamentary democracy and is damaging to Ireland’s interests.

The Government would be doing Irish democracy a favour by testing the correctness of this decision before dragging us into the nightmare of yet another European referendum.


Ronan McCrea is an Irish barrister who lectures in EU and constitutional law at University College London

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