Taoiseach claim about joining Nato contested by legal experts

Legal experts believe a referendum would likely be needed to confirm any political decision to join Nato – despite assertions from Taoiseach Micheál Martin that it would be a policy decision for the Government.

Asked to comment in Strasbourg on Wednesday on remarks by Tánaiste Leo Varadkar last week about a possible referendum on defence policy, the Taoiseach said a Citizens’ Assembly might be best placed to take an “informed, evidence-based approach” to assess the issue.

“We need to reflect on military non-alignment in Ireland and our military neutrality. We are not politically neutral,” Mr Martin said. “We don’t need a referendum to join Nato. That’s a policy decision of government.”

[ Ireland would not need referendum to join Nato, says Taoiseach ]

“We would need a referendum to join a European Union defence pact, if one was formally developed and declared, because there are provisions in our Constitution that would demand such a referendum.”

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Mr Varadkar last night backed the Taoiseach. While noting it was a “moot point” as the Coalition had no plan to join the military alliance, he said: “The Taoiseach is correct. Ireland would not require a referendum to join Nato as it would not involve a transfer of sovereignty. We did not have a referendum to join the UN for the same reason.”

However, constitutional law experts said the situation was not straightforward. Dr David Kenny of the Trinity College Dublin school of law said there was a “strong case” for a referendum being needed.

Citing a 1987 Supreme Court case, the Crotty judgment, which forced the government to hold a referendum on the Single European Act – and on core EU treaties since – he said there was a constitutional limit to the Government giving away its powers to another entity in a lasting way.

‘Incredibly angered’

“The Supreme Court held that if another entity, not the government, could make foreign policy decisions that would bind us, then this transfer of power would have to be done by way of a constitutional change, requiring a referendum. My understanding of Nato membership is that that’s precisely what it would entail.”

Dr Laura Cahillane, senior lecturer in the school of law at the University of Limerick, noted the Constitution did not say anything about neutrality or preventing something like joining Nato – “but you can’t look at things purely literally”. She added that there were a “whole host of Supreme Court decisions which concern aspects of giving away sovereignty or executive power, or how far the State can go”.

She said Irish people would be “incredibly angered” if the Government took a decision like that without putting it to the people in some form, “whether by Citizens’ Assembly or the best way of getting the public on board is having a referendum”.

She said if a Government sought to do so, it would very likely be challenged in the courts.

“Certainly I think it’s a lot less clear-cut than the Taoiseach made it sound today,” she said.

Green Party leader Eamon Ryan and deputy leader Catherine Martin would not be drawn on whether they shared the Taoiseach’s view. Mr Ryan’s spokesman said the issue was “hypothetical” as nobody in Government was advocating joining Nato.

Ms Martin’s spokesman said Irish neutrality “has and will continue to serve this country and the wider world well”, and said there were no plans in the programme for government to support joining Nato.

Speaking privately, one Fianna Fáil TD suggested Mr Martin may have “got carried away by the EU adulation” in Strasbourg.

Labour leader Ivana Bacik said the Taoiseach may be “legally accurate” but that it was “politically out of the question”. Catherine Murphy, co-leader of the Social Democrats, said such a move would have “virtually zero public or political support” irrespective of the constitutional position.