ANALYSIS:BRITISH PRIME Minister David Cameron's recent veto on changes to the EU treaties was a poorly played hand. It isolated the UK, alienated fellow EU member states, irritated Scottish nationalists, and failed in its stated aim of benefiting the City of London.
Nor was this diplomatic setback for the UK a positive development either for the euro zone or for Ireland, which shares many (although not all) of Britain’s strategic interests. Exactly how bad a hand Cameron has played remains to be seen. It depends very much on what goes into the intergovernmental treaty now being negotiated.
Cameron’s blockage of an EU-level agreement has had two unfortunate legal consequences for Ireland.
The first has been to reduce our bargaining power, and deprive Ireland of a veto on treaty change. This can be explained very simply: in normal circumstances, Article 48 of the Treaty on European Union requires agreement and ratification by all EU member states of major EU treaty changes. But – thanks to Cameron – what we will have before us will not now be an EU treaty. Thus, Article 48 will not apply. In consequence, any state – including Ireland – which rejects the future fiscal treaty will be unable to block the treaty’s entry into force, merely its own participation in it. (The draft agreement now circulating among member states envisages that it will come into force after ratification by only nine euro zone states).
Any Irish referendum on this treaty will thus be quite different to previous referendums on EU treaties: legally, a “No” vote will not prevent the other member states from steaming further down the tracks with integration, but will merely mean Ireland steps off the train.
The second effect of Cameron’s veto of a new EU-level treaty has been to make it far likelier that any new agreement will contravene Ireland’s Constitution – thus necessitating a referendum. Again, the explanation why this is the case is straightforward. EU treaties are constitutionally protected by Article 29.4 of the Irish Constitution. Non-EU agreements are not.
Article 29.4 – the provision on which we vote every time there is an EU-related referendum – does a number of things: one of them is to authorise our signing up to the current EU treaties, as well as any amendments to them which do not go beyond their essential scope and objectives. Article 29.4 would have provided constitutional protection for most of the proposals now envisaged if these proposals had been put into an amending EU treaty. But Article 29.4 has no application at all to the non-EU treaty which Cameron has now made necessary.
This sidelining of Article 29.4 nonetheless does not automatically mean we need a referendum: we only need a referendum if one of the other provisions of our Constitution would be violated by what the new agreement proposes.
Will this be the case? Proposals in the draft treaty which might create constitutional concerns include the following:
The new “balanced budget” rule, required to be introduced by binding provisions “of a constitutional or equivalent nature”. Since there is nothing “equivalent” in Irish law to a constitutional provision, implementing this proposal on its own might well be enough to require a constitutional amendment, if it is persisted with in its present form.
The new obligation imposed on member states which are subject to an excessive deficit procedure to establish and submit to the European Commission and Council alike a budgetary and economic partnership programme “with binding value”.
The new commitment to “work jointly towards an economic policy”. Euro zone states are already committed to ever-closer co-ordination of economic policies. Nonetheless, the Supreme Court majority in the 1987 Crotty case held unconstitutional long-term commitment in the foreign policy field rather similar to the new one in the draft treaty.
The provisions of the Irish Constitution which could be used as weapons in challenging Irish agreement to or (more probably) implementation of the latter two commitments without a constitutional amendment include Article 5 (with its description of Ireland as a “sovereign” State), Article 28 (which provides for executive powers) and Articles 17 and 21 (which concern Dáil prerogatives).
It is difficult to assess precisely how seriously the Government should take the latter two constitutional concerns. Factors pointing towards constitutional difficulties in relation to the new treaty and/or the measures implementing it would be (a) the possibility of an interventionist ruling, such as Crotty; and (b) the fact that not alone the treaty but measures adopted under it in domestic law will need to be constitutionally acceptable.
Factors assisting a finding of constitutionality, on the other hand, would be:
The traditionally deferential attitude of the courts regarding the exercise of executive power in the foreign policy field, demonstrated by conservative precedents like the Supreme Court ruling in McGimpsey;
The fact the treaty itself will be an international accord – rather less intrusive in its legal effects than an EU treaty, and not binding in domestic law until made so by the Oireachtas; and
The fact the draft treaty indicates that several of its most prominent features (eg, the budgetary and economic partnership programme), are also to be proposed as EU laws (which are immune from constitutional attack under Article 29.4). Were such legislation to be in force at the time this treaty is ratified, Irish constitutional concerns in these respects at least would diminish.
A complicating factor in all this is the uncertain state of the law: even when we have the completed text, it may still be impossible for the Government to be certain whether certain aspects of it are constitutional or not. Thus, for example, the interpretation by the Supreme Court of Article 5 of the Irish Constitution – the “sovereignty” clause – has varied. In the 1987 Crotty case, this was interpreted in an extraordinarily demanding way, and arguably unrealistically. In the 1990 McGimpsey case, on the other hand, the Supreme Court withdrew to a far more moderate stance in relation to the same provision’s impact on the Anglo-Irish Agreement.
Whether the objective of a single economic policy is viewed as constitutionally acceptable or not by the courts depends on which Supreme Court turns up in the event of a constitutional challenge – a Crotty-type interventionist court or a McGimpsey-type court, more deferential to the rights of the executive.
Overall, we may conclude that the balanced budget rule will certainly require a referendum, if it is sought to insert such a rule in the Constitution. If this is not sought, then whether the Government decides to have a referendum or not may depend on whether it wishes to live with a certain degree of legal uncertainty.
Alternative reactions to legal uncertainty within the Government are possible. Either a referendum could be held to create legal finality, or ratification and implementation could be attempted without a referendum so as to optimise Ireland’s prospects of staying inside the euro zone, along with a vigorous defence mounted to any Crotty-like constitutional challenge (either to the treaty itself or to acts adopted at domestic level in order to implement it).
Winning a referendum vote in this climate would be a difficult prospect for the Government, considering the following:
* It would face a public angry over economic difficulties and budget cuts;
* Polls have indicated a hostile attitude to any treaty change;
* The Oireachtas now provides a platform for a larger, more articulate and politically disparate Eurosceptical membership (absent during the Lisbon campaigns);
* The restrictive effect of the rather unworldly rulings of the Supreme Court in McKenna (No 2) and Coughlan concerning referendums persists; and
A hostile attitude can be expected from British-owned newspapers which enjoy wide circulation here.
Far more worrying than the prospect of a difficult campaign would be the consequences which a “No” vote in a referendum might involve for this country. Such a vote would inevitably be seen by Germany and other member states as a rejection by Ireland of the solidarity which involvement in the euro zone requires of all its members – and this precisely at the time when this country desperately needs the financial solidarity of other euro zone member states to survive the current financial crisis.
There is no provision for Ireland or any other member state to be expelled from the euro zone, but equally, Ireland has no guarantee of sufficient ongoing financial solidarity on the part of the other member states to prevent us from falling out of it. Minister for Finance Michael Noonan was therefore probably correct in indicating a referendum would effectively be a vote on whether to stay in the euro zone.
A referendum on the new treaty is nevertheless now a distinct possibility, thanks to the potent combination of Angela Merkel’s unyielding insistence on seeing treaty change and David Cameron’s needless refusal to allow this to be done at EU level.
Dr Gavin Barrett is a senior lecturer specialising in European law at the school of law, University College Dublin