The Government may take an adventurous approach to challenging ruling on referendums
THE QUESTION of whether or not a referendum will be required on the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union hangs over the Irish political system.
Somewhere, probably this weekend, the Attorney General and her senior officials are working on a consideration of where the finer provisions of this new treaty fit into the existing matrix of Irish constitutional law.
Simultaneously, a leading senior counsel or two will have been asked to give the issues separate consideration. On the collective conclusions of these lawyers rests the short-term focus of Irish politics and perhaps the long-term nature of Ireland’s relationship with the European Union.
The intersection between the political process and legal consideration of constitutional issues is much more blurred than politicians in government often like to admit. The suggestion this week, for example, that the Attorney General’s consideration of whether we require a referendum was somehow initiated by a formal decision at Tuesday’s Cabinet meeting is politically convenient, but a misrepresentation of what is involved.
The Office of the Attorney General will have been across every stage of the negotiation of this European treaty. Over the 10 weeks or so since the idea of a treaty-level fiscal compact was mooted, they will have been toing and froing with the Taoiseach’s department and Foreign Affairs on the legal implications of various drafts and scenarios. There can be little doubt that a key consideration in Ireland’s negotiation stances throughout this relatively rapid treaty-making process was whether the drafts would or would not cross the legal tripwire for an Irish referendum.
On the face of it, the finalised text agreed by Enda Kenny and his European colleagues amounts to a dramatic watering down of those provisions which, if included, would have automatically triggered a referendum here.
It was initially suggested that member states would have to adopt a balanced budget requirement in domestic law “at constitutional or equivalent level”. Instead, the finalised text speaks of member states transposing the balanced budget requirement into national legal systems “through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be respected through the national budgetary process”.
All indications are that the Government will seek to meet this requirement by having the Oireachtas pass a specific Act expressly prohibiting budgets from deviating from the requirement as defined in this treaty. Passing such an Act will present no difficulty given the political make-up of the current Dáil.
The effect of such a statutory “debt brake” is, however, limited. A future Oireachtas, seeking, say, to pass a Keynesian budget, would simply have to pass simultaneously an Act repealing this debt brake. Notwithstanding this, the Government appears satisfied that simple legislation meets the “binding and permanent” requirement.
A constitutional balanced budget amendment would obviously be more watertight since a government could only breach it in future if the people repeal the constitutional debt brake in a popular vote. The difficulty is that it requires a popular vote now to put that brake into the Constitution. Notwithstanding Fine Gael and Labour strength with the electorate, and the likely support for such an amendment from Fianna Fáil, the Government is understandably reluctant to take the democratic gamble required by this level of constitutional change.
Assuming the Government can opt for legislative change in transposing a balanced budget rule, the prospect of a referendum still cannot be ruled out. There are several other provisions of the text agreed this week which seem at first reading to step close to, and perhaps over, the referendum tripwire.
The treaty contains a number of draconian- sounding measures designed to punish states that don’t comply with the balanced budget provisions, or with “partnership programmes” imposed by our European colleagues and the European institutions. Various articles of the new treaty speak of “correction mechanisms” being “triggered” and of “obligations to implement measures to correct deviations over a defined period”.
Ultimately the treaty provides that the European Commission, or indeed another member state, can bring a deviating state before the European Court of Justice. That court can effectively injunct the member state to comply within a defined period and impose severe fines for persistent failure to comply. It is these latter provisions that will attract closest scrutiny from the Attorney General and lawyers working with her in coming days.
They will seek to assess not so much whether the “quasi-automatic” punishments imposed by the treaty encroach on Irish sovereignty – which they clearly do – but whether they encroach on our sovereignty to an extent not already permitted by existing constitutional provisions enacted by the people in previous EU referendums.
If the Attorney General advises that a referendum is not required and the Government follows that advice, its decision is likely to be challenged in the courts.
There are some in Government and legal circles who feel this might present a useful opportunity for the Supreme Court to revisit some of the jurisprudence flowing from the 1987 Crotty judgment. Some see that case as having set the referendum requirement too low.
Governments previously erred on the side of caution when it came to deciding whether a referendum was required. They were fearful that deciding not to hold a referendum, only to be forced by the courts to hold one – as in the Crotty case – would put them on the back foot for any subsequent campaign. There are suggestions this Government may be more adventurous in its approach to this treaty.