Attorney General's advice on fiscal treaty expected next week


THE ATTORNEY General is expected to deliver her advice to the Government on the constitutionality of Europe’s new fiscal treaty next week.

While the Government has repeatedly said that Attorney General Máire Whelan is not under time pressure in formulating her advice, political sources say it is likely she will complete her assessment of the treaty within days.

Ms Whelan’s findings will be made public on the floor of Leinster House, according to sources, possibly by Minister for Justice Alan Shatter. Ms Whelan is considered unlikely to make a public presentation of her advice.

After receiving the Attorney General’s advice, the Government will decide whether to have a referendum on the treaty, as demanded by Opposition parties. A top European official told The Irish Times last week the treaty was specifically crafted to minimise the possibility of an Irish referendum.

If it is decided not to have a referendum, the treaty will go to the Dáil for approval. The key elements of the pact will be put into legislative form and put to the Dáil in the form of a Bill. It will then go on to the Seanad and, if passed by both Houses of the Oireachtas, will go to President Michael D Higgins for signature.

Routine international treaties only require approval by the Dáil, but the budgetary implications of the fiscal compact mean it is almost certain it will need to be transposed into legislation and will require the approval of both Houses of the Oireachtas.

The President will then have to decide whether to sign it into law or refer the Bill to the Supreme Court for adjudication. Under article 26 of the Constitution, the President is entitled to refer any Bill to the Supreme Court after consultation with the Council of State.

If the President refers the Bill and it is approved by the Supreme Court it will then be immune to further challenge.

Groups opposed to the treaty have indicated their intention of issuing a court challenge if a referendum is not held, and so the issue is likely to come before the Supreme Court irrespective of the President’s decision.

With Sinn Féin and left-wing TDs opposed to the EU spearheading a campaign for a referendum, it is possible an attempt may be made to force the President to refer the Bill to the Supreme Court.

Under article 27 of the Constitution a petition supported by a majority of the Seanad and one-third of the Dáil can be presented to the President, asking him to refer a Bill to the Supreme Court.

Depending on the stance taken by Fianna Fáil, which supports the holding of a referendum, there is a possibility that the required number of Senators and TDs could be found to sign such a petition.