IT IS a truth universally acknowledged that nothing is ever over until the corpulent lady sings. We now have the fourth draft in about so many weeks of a “Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union”.DF
If the aforementioned lady is not quite singing, she is certainly practising her scales in the dressing room.
This draft – prepared like the others by a 100-strong ad hoc working group largely composed of member state representatives – shows some changes from earlier ones but far stronger similarities.
It still has to get through a finance ministers’ meeting next Tuesday, a further meeting of member state delegates and finally a meeting of EU leaders on January 30th, but the heavy spadework is clearly done.
In Ireland, all thoughts are focused on whether it will require a referendum. Since the Government has made it clear that it will have a referendum only if constitutionally obliged to do so, all will depend on the advice given by Attorney General Máire Whelan on the final treaty draft.
Three factors need to be met in order for Enda Kenny's Government to avoid a referendum. The first – an absolute sine qua non – was to remove earlier drafts' requirement that the treaty's balanced budget rule be in "binding provisions of a constitutional or equivalent nature".
This would have made an Irish referendum inevitable. That requirement disappeared from draft three – and, assuredly to Enda Kenny’s relief, it has not reappeared in this version.
Secondly, as many as possible of the treaty requirements either needed to be implemented in an EU framework or not go beyond EU requirements, and thus benefit from article 29.4 of the Irish Constitution (which authorises and immunises certain EU measures which would otherwise be unconstitutional). That process, begun in earlier drafts, is continued here.
Thirdly, the actual impact of the treaty needed to be kept as limited as possible, since the more limited the impact, the less likely it is to involve any unconstitutionality.
The reduced role given to the commission and the council in earlier drafts is maintained: although if the rather extreme approach adopted to sovereignty by the Supreme Court in the Crotty case were to be maintained, one wonders if this or any similar treaty would pass constitutional muster.
Ultimately it is not possible to say what advice the Attorney General will be prepared to offer. To some extent, her advice will depend on the degree of constitutional certainty she seeks.
Furthermore, it is possible even if she advises that a referendum is not necessary that the ratification of the treaty and the adoption of implementing legislation could be subsequently challenged in the courts.
Jack Lynch famously said that “it would be a brave man who would predict these days what was or was not contrary to the Constitution”.
This is still true – but the fourth draft of this treaty certainly offers far more reason to believe that a referendum can be avoided by the Government than initial drafts did.
Dr Gavin Barrett is a senior lecturer in UCD School of Law specialising in European Union law.