Amending the Constitution

On May 22nd the Amsterdam Treaty will be put to the Irish people in the form of a question as to whether or not they approve the 18th amendment to the Constitution.

In approving it they will insert the following clauses after subsection 4 of section 4 of Article 29:

"5) The State may ratify the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts signed at Amsterdam on the 2nd day of October 1997.

"6) The State may exercise the options or discretions provided by or under Article 1.11, 2.5 and 2.15 of the Treaty referred to in subsection 5 of this section and the second and fourth Protocols set out in the said Treaty but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

Because each successive stage of EU integration is built on the edifice of the past, the treaty takes the form of a series of amendments to previous treaties.

The second paragraph allows the Government to sign up to aspects of the treaty which are not mandatory from the start. These are the products of the innovatory mechanisms in the treaty providing for the first time a framework for forms of co-operation not involving all Union member states.

Specifically they concern optional police and judicial co-operation in criminal matters; visa, asylum, immigration and other policies related to free movement of people; aspects of co-operation under the now-incorporated Schengen agreement on passport-free travel such as the common information system or harmonisation of controls on guns. And yet, why a referendum?

Unlike all our European partners, with the exception of Denmark, the Treaty of Amsterdam will only be ratified by Ireland following a referendum.

In Ireland's case the need is not so much a legal as a political necessity, but there are unresolved legal ambiguities.

Although amendments to the Constitution in Ireland require approval by referendum, many constitutional experts believe that the Amsterdam Treaty contains nothing that had not been envisaged in previous treaties, and therefore nothing that has not already been approved in principle.

But the Government was burnt once before, on the Single European Act in 1987, and has decided not to risk further legal challenges. As a result of the Crotty case judgment in 1987, a referendum on Amsterdam was legally required only if the treaty adds a new element to the Maastricht Treaty, or to previously ratified treaties, which goes beyond "the essential scope or objectives" of such treaties. An amendment "anticipated in the establishing treaties" or simply a "more specific enumeration of the objectives of the establishing treaties" would not require a referendum.

And the judgment defines sovereignty as the "unfettered right to decide to say yes or no". The failure of the Amsterdam Treaty to restrict national vetoes suggests no significant erosion of national sovereignty that might require a specific mandate. Clearly, moreover, new treaty provisions do not necessitate a referendum unless they contain matter which impinges on constitutional provisions.

In the case of the Amsterdam Treaty, one senior Irish lawyer working for the Commission, Mr John Temple Lang, says that it is arguable that the small extension of the remit of the European Court of Justice may lead to an erosion of the constitutional authority of the Irish courts and hence require referendum authorisation.

But even this is not certain as both provision for the court itself and for bringing aspects of justice and home affairs co-operation under European Community rules were made in previous treaties. The specific application of these general provisions may thus not require referendum approval, he argues. The vast majority of the treaty provisions, however, clearly have no effect on the Constitution.