Treaty backers face tough mission ahead of May poll


OPINION:On Tuesday the Government fixed the date for the referendum on the fiscal treaty, an event of potentially momentous significance for the political and economic future of this State – and of considerable political significance for Enda Kenny’s Government.

Wording for the proposed amendment (drafted by the Attorney General) was also approved, and the referendum date – Thursday, May 31st – announced in the Dáil by Tánaiste Eamon Gilmore. A Bill will propose inserting the following new article 29.4.10 in the Irish Constitution:

“The State may ratify the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March, 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.”

This wording is broad – indicating a cautious approach. It goes beyond the simple authorisation to ratify deployed in the Constitution in relation to treaties in the past such as the 1998 Rome Statute of the International Criminal Court or the 1989 community patents agreement. Instead, it contains a “necessitated” clause that ensures that not only the fiscal treaty itself is protected from constitutional attack but also national measures necessitated by it, and European-level measures adopted under it. The effect of the clause is to make the amendment look rather like earlier authorisations to ratify EU treaties.

Measures immunised by this “necessitated clause” will include the “provisions of binding force and permanent character” Ireland will adopt under article 3(2) of the fiscal treaty so as to implement the so-called balanced-budget rule.

Similarly immunised will be the setting-up by Ireland of a correction mechanism that will be automatically triggered by significant observed deviations from the fiscal treaty’s budgetary standards. Such immunised Irish measures will probably be contained in a Fiscal Responsibility Bill to be published before July. Constitutional attacks on these measures – eg, under provisions conferring powers on the Government, the Oireachtas or the Dáil – will clearly be blocked by the new article 29.4.10, insofar as they are required by the fiscal treaty. So too should constitutional attacks on statutory instruments adopted by the Government falling within treaty principles and policies.

The May 31st date will be formally set by an order of Minister for the Environment Phil Hogan under the Referendum Acts once the referendum Bill is passed by the Oireachtas. An advantage of this early referendum date is that it should lessen the danger of a long campaign spooking potential international investors in Ireland, its banks or industry.

Disadvantages include the fact that a May referendum campaign may possibly be affected by political crosswinds from the French presidential election where the fiscal treaty is a hot topic.

Furthermore, an end-of-May deadline gives little time to create issue awareness: the Government has given itself a mere nine weeks to persuade the electorate to facilitate ratification of the fiscal treaty and vote in favour of the new amendment.

The challenge for a government trying to win any referendum is considerable. Because of the Supreme Court ruling in the McKenna (number two) case, the Government can spend nothing on promoting a “Yes” vote. Instead, the Minister must limit himself to exercising his discretion under the Referendum Act 1998 to sign an order establishing the Referendum Commission, whose tasks will include explaining the amendment proposal in a manner neutral to both sides.

In the first Lisbon Treaty referendum, however, massive private expenditure, much of it promoting a “No” vote, went unchecked – illustrating the ongoing susceptibility of Irish constitutional referendums to the influence of large-scale private finance. Furthermore the 2000 Supreme Court ruling in the Coughlan case appears to imply a requirement of equal broadcasting time for the “Yes” and “No” sides – considerably reducing the impact of majority support on the part of elected politicians for any amendment.

Even ignoring the constitutional restrictions now surrounding referendums, political parties seem to find it hard to motivate their members for such polls.

Recent referendum campaigns crucial to the nation’s future, such as those on the Lisbon Treaty, have seen TDs – who are elected largely on the basis of local constituency concerns – highly reluctant to use up political capital in asking for votes. Notwithstanding their rhetoric, even political parties themselves are often unwilling to commit major funding to referendum campaigns. (Noticeably, Fine Gael recently sustained heavy financial losses over Gay Mitchell’s abortive bid for the presidency, while Fianna Fáil is only gradually rebuilding its finances.)

The securing of a “Yes” vote is also unlikely to be helped by the technical and difficult nature of the treaty subject matter. However, the reminder in the treaty’s preamble that access to any new bailout programme, under the half-trillion-euro European Stability Mechanism, will be conditional – as from March 1st, 2013 – on the ratification of the fiscal treaty may concentrate voters’ minds. Notwithstanding positive economic developments, it is as yet uncertain that Ireland can escape without another bailout.

In the circumstances, failure to ratify the fiscal treaty would involve a considerable leap of faith. Ireland would be denying itself the expectation of future ESM bailouts, substituting instead reliance on the goodwill of states with whom we will ourselves have refused to co-operate. It would be the equivalent of cancelling our inability-to-pay- our-debts insurance – a risky gamble for a State itself desperately trying to regain access to international sovereign debt markets, and whose banks remain on life support.

This deeply unattractive vista may indicate why the “Yes” side currently enjoys a 49 per cent to 33 per cent lead in the polls (with 18 per cent still undecided). This is a significant lead to have at this time of the debate – but as previous experience shows, a lot can happen between now and polling day.

Dr Gavin Barrett is a senior lecturer in UCD School of Law specialising in the law of the European Union