Supreme Court likely to be final arbiter on treaty poll

INSIDE POLITICS: It would be the height of folly for Government to hold an unnecessary and divisive referendum on EU fiscal compact

THE POTENTIAL ratification of the EU fiscal compact by the Dáil and Seanad has provoked a lot of ill-informed rhetoric about an alleged lack of democracy in the Irish political system.

Allied to this are claims of a conspiracy between the Government and the EU officials to ensure the will of the people is circumvented through a treaty designed to accord with the Irish Constitution.

It is not surprising that Sinn Féin, the United Left Alliance and anti-EU Independents have made a lot of noise, demanding that a referendum should be held regardless of whether it is legally required.

What is surprising, though, is that Fianna Fáil has gone down this road as well. While senior party figures say there is no question of Fianna Fáil campaigning for a No vote, if a referendum does take place, that message has not been made clear to the wider public.

The issue of whether the fiscal compact treaty is put to the people in a referendum or ratified by means of a Bill passed by the Oireachtas boils down to the simple questions: is it, or is it not, required by the Constitution?

We live in a representative democracy, which means laws are passed and treaties ratified by the lawfully elected houses of parliament as long as they are in compliance with the Constitution. If proposed laws or treaties are not in accordance with the Constitution they have to be put to the people in a referendum.

It is as simple as that.

If the latest European treaty complies with the Constitution it would be the height of folly on the part of the Government to initiate an unnecessary and divisive referendum.

Much has been made about the claims by an unnamed EU official that the treaty was designed to avoid a referendum in Ireland. If true, what is wrong with this? Every law proposed by the government of the day is vetted by the attorney general to ensure it complies with the Constitution.

The fact that the other EU states were agreeable to wording a treaty in such a way that it is likely to comply with our Constitution is not something to sneer at. This treaty will be implemented whether or not Ireland ratifies it, so what we do doesn’t really matter to Germany and the other big powers. If they have gone out of their way to ensure that the treaty accords with the our Constitution, so much the better.

During the week Independent TD Thomas Pringle launched a campaign to try to force a referendum on the treaty, under article 27 of the Constitution. This article, which has never been used, provides that the President can be petitioned to initiate a referendum.

However, the circumstances in which such a referendum can take place are much more restrictive than is generally appreciated.

For a start, article 27 can only be invoked if the Seanad rejects a Bill passed by the Dáil or amends it in a way unacceptable to the Dáil. In these circumstances one-third of Dáil members can join with the majority in the Seanad in petitioning the President to call a referendum on the Bill in question.

Even then there are further hurdles to be crossed.

If the President agrees to call a referendum the government is not obliged to hold it for 18 months. It has the option of holding a general election within that period and, if re-elected, can then pass the disputed Bill without holding a referendum.

Even if a government holds a referendum, and a majority votes against it, that majority has to amount to more than a third of the entire electorate.

Article 27 is a tribute to the ingenuity, not to say deviousness, of Eamon de Valera’s mind. In practical terms there is very little prospect of a referendum being forced under the article and that explains why it has never been invoked.

Full marks to Pringle and his colleagues for trying to force a referendum on an issue they feel strongly about, but unless the measure is first defeated in the Seanad, that route will be closed off.

What Fianna Fáil is doing is another matter. The party is sending out mixed signals about where it stands on the fundamental issue. Party leader Micheál Martin has criticised the terms of the treaty and some of those criticisms may indeed be valid.

However, this particular treaty has now been agreed by 25 of the EU states and that is what is up for decision. The time for an abstract argument about what the treaty should look like in the best of all possible worlds is over. Fundamentally anti-EU parties like Sinn Féin insist that they are not really anti-Europe, but somehow they always end up campaigning for a No vote.

Fianna Fáil sources insist that the party is not in the business of competing with Sinn Féin for the populist anti-EU vote, but the party needs to stake out a clear position if it wants to put those concerns to rest.

There is every chance that the Supreme Court may have to make the final call this time around.

The Attorney General may advise that the treaty does require a constitutional amendment and in that case there will be no option but to have a referendum. Even if the Attorney General advises that the treaty complies with the Constitution and it is passed by the Oireachtas in the form of an enabling Bill, President Higgins may decide to refer it to the Supreme Court.

In any case it is certain that opponents of the EU will challenge the treaty in the courts so, one way or another, the Supreme Court is likely to make the final decision on whether a referendum is required.