Critics of the proposed wording for the referendum on the EU constitutional treaty fail to take account of Ireland's past successes, writes Eugene Regan
Ireland has amended its Constitution on five occasions to accommodate membership of the European Union. The outcry over the proposed wording for the referendum on the new EU constitutional treaty, outlined in this newspaper last week, is misplaced.
The wording put forward by the Government, and discussed with the main Opposition parties, is entirely in line with the approach adopted in previous treaty changes. It sets out in precise terms the real choices that need to be made if the new treaty is to be ratified by the people.
The critics fail to take account of the very specific and successful method Ireland has adopted in the past to ratify successive European treaties. Their criticism also reflects a misreading of the Crotty judgment on the Single European Act, which led to the first referendum to ratify changes to the EC founding treaty in 1987.
The Irish Constitution provides that the State may become a member of the community or union, gives the Government a licence to ratify relevant EU treaties and deems constitutional any law or measure adopted in this country which is necessitated by our membership of the union. Thus the basic ratification process is quite straightforward. However, that process became more complex following the adoption of the Amsterdam Treaty. It provided for a more flexible Europe, whereby member states could choose to opt in or out of specific policies, such as the Schengen travel area or police and judicial co-operation in criminal matters. The referendum on Amsterdam confined the exercise of these options to those specifically set out in the treaty and required prior approval of the Oireachtas. This formula was extended to options and discretions provided for in the Nice Treaty.
The draft wording for the referendum on the new constitutional treaty maintains continuity with the ratification procedure adopted by Ireland up to this point. It provides that the State may ratify the constitutional treaty, that the Irish Constitution will not be in conflict with any law or measure adopted which is necessitated by the obligations of membership, and that the State may exercise certain options or discretions to participate in particular policy areas or agree to a move to majority voting.
On its face this is not a radical constitutional amendment, as this is precisely the formula adopted in relation to earlier EU treaties and is contained in the Constitution. The rationale for the type of wording proposed is that it has been tried and tested and has facilitated the incorporation into Irish law of increasingly complex treaty provisions.
The wording proposed has been described as an attempt to overturn or bypass the Crotty Supreme Court judgment, which is invariably presented as prohibiting the ratification of any EU treaty change without a referendum. Nothing could be further from the truth. The Supreme Court in that case ruled that ratification by the Government of the Single European Act, with the sole exception of the section concerning European political co-operation, without holding a referendum was permitted by virtue of the original constitutional change in 1972 on joining the community.
The Single European Act of 1986 provided for changes in a whole series of policy areas from the internal market to the environment. It also provided for a major shift from unanimity to qualified majority voting in EU decision-making. Yet the Crotty ruling meant all of these provisions could be ratified by the Government without the need for a referendum. It held that the people's ratification of Ireland's membership of the union in 1972 authorised the State not only to join the union, but to join in amendments of the treaties which were within the essential scope and objectives of the union. It held that the provisions in that treaty touching on common foreign policy were not covered by the referendum on membership.
Future changes to the EU treaty in such areas as the union's objectives, values or competences will, as at present, require an intergovernmental conference, unanimity among member states, and ratification by referendum in Ireland. What is proposed is that mere policy or institutional changes, which must also be agreed unanimously at EU level, could be ratified by this country when approved by the Oireachtas. The logic is that to do so would not alter the scope or objectives of the union and thus by definition do not involve any constitutional issue. Thus the proposed wording for the referendum in this regard is eminently sensible.
Concerns have been expressed about the provision that allows member states to agree to move from unanimity to majority voting in certain policy fields. Again this provision exists already and the new treaty merely extends that provision to some additional areas.
While it may be decided to leave open decisions on whether changes provided for in the EU constitution must be put to a referendum, this would be unfortunate. There is no legal or constitutional requirement to do so. It would lead to potential legal challenge each time changes are made under the constitutional treaty. It would also lead to uncertainty over the conduct of our foreign policy and delay in decision-making in Europe.