Legal challenge to State joining Pesco ‘unlikely to succeed’

People Before Profit considered moving against EU structure but was advised against it

Constitutional lawyers have advised that a legal challenge against the Government’s decision to join a new EU military structure is unlikely to succeed.

People Before Profit had considered taking a constitutional challenge to the decision to join the Pesco (Permanent Structured Co-operation) agreement on greater co-operation with other member states on military missions around the world.

In a Dáil debate before Christmas, Dún Laoghaire TD Richard Boyd Barrett claimed Pesco was an “abandonment of our neutrality and is unconstitutional and should be challenged”.

But the move to join was accepted by 78 votes to 42 when Fianna Fáil supported the Government. Sinn Féin, Labour, Solidarity-People Before Profit, Independents4Change, the Green Party, Social Democrats, and a number of Independents opposed joining the military structure.


People Before Profit has since received legal advice that a constitutional challenge was unlikely to succeed.

“We probably wouldn’t win it because military defence, common defence is somewhat ill-defined,” said Mr Boyd Barrett. “So although it is prohibited [in the Constitution] it is not exactly clear what it is.”

He added: “We could only take the risk if we thought there was a reasonable chance of winning the case and getting our costs. And at the moment the legal advice is that that’s not certain because common defence is not clearly defined.”

“To me it’s an absolute no-brainer that Pesco is a common defence – building blocks of a common defence and its architects are stating that clearly. But legally proving it conflicts with our constitutional prohibition on common defence [and] requires us to have a definition of what a common defence is.”

Article 29.4.9 of the Constitution prevents the State from adopting any European Council decision on common defence that would include Ireland but does not define either common defence or neutrality.

Traditional fudge

During the Dáil debate on Pesco, Independents4Change TD Clare Daly expressed surprise that Taoiseach Leo Varadkar had not done a traditional “fudge” on neutrality. “He actually came out and argued in favour of an EU army in preference to the US army,” she said.

Mr Varadkar, who was replying to a claim by Independents4Change TD Mick Wallace that Pesco was creating an EU army said: “Europe should provide for and pay for its own defence and not be dependent on the United States in the way it has been since 1945”.

Pesco and European security and defence co-operation “is Europe starting to take responsibility for and control over its own defence, not relying on the United States in the way it has done until now”.

But Mr Varadkar said that in Ireland “we have a particular, different view”, a position of neutrality and non-alignment, which the Government “will defend because we believe our non-alignment and neutrality makes us stronger and gives us more influence around the world”.

Pesco would be different for Ireland than for other countries “because we are going to join it on an opt-in, opt-out basis”. Ireland would only join certain Pesco programmes such as counter-terrorism, cybersecurity and peacekeeping.

Ireland proposes involvement in five of the first 17 Pesco programmes – the centre of excellence for EU training missions; the military disaster relief-capability programme; the harbour and maritime areas surveillance and protection project; a programme to upgrade maritime surveillance and development of the cyberthreats and incident-response information sharing platform.

Pesco projects Ireland will not join include one to enable military forces to move across European borders more easily (military mobility); a programme to develop new types of armoured vehicles, and “Euro artillery”, a “mobile precision artillery platform”.

Marie O'Halloran

Marie O'Halloran

Marie O'Halloran is Parliamentary Correspondent of The Irish Times