In what was a surprise to most of the political establishment, the Taoiseach has just announced that the Government has decided to hold a referendum on the Fiscal Treaty. Speaking in the Dáil this afternoon Taoiseach Enda Kenny stated:

Throughout the process leading to this new Treaty, the Government has consistently said that the final text would be referred to the Attorney General for her advice as to whether a referendum was required to ratify it in Ireland. At this morning’s Cabinet meeting, the AG conveyed her advice that, as this treaty is a unique instrument, outside the European Union treaty architecture, on balance, a referendum is required to ratify it. On foot of this advice, the Government has decided to hold a referendum on this issue in which the people of Ireland will be asked to give their authorisation for the ratification of this treaty.

We here at Human Rights in Ireland had identified a number of possible reasons why a referendum might be required, centering mainly on the unclear demands of Article 3 of the Treaty, the potential for enforcement by the European Court of Justice and the conditioning of the disbursing of European Stability Mechanism funds on compliance with the Treaty’s terms.

Article 3 of the Treaty requires us to place a debt brake rule of ‘binding force and permanent character’ into our law. Despite the insertion of ‘preferably constitutional’ into the final draft of the article, which seemed to open up Ireland’s options in ratifying, it remained doubtful whether legislation could qualify as sufficiently binding or permanent. Indeed that latter word permanent, a term of doubtful currency and scope, simply underlined how poorly the Treaty was written. As time has passed, I have grown stronger in my belief that the article’s concluding clause  “or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes“, shut down the supposed openess of ‘preferably constitutional’. The word otherwise indicated that for full ratification, Ireland would have to effectively have to foreclose on the possibility that the Oireachtas could revoke the debt brake rule, thereby ruling out legislation. The language of article, it is arguable, set a fixed goal – full respect and adherence – despite the attempt to inject choice into how this goal was met. Litigation would have followed on grounds that full respect and adherence throughout our budgetary process, would require a constitutional referendum to insert the brake rule and disempower our Oireachtas.

I would applaud the precautionary approach of the Attorney General here.  She was, in advising the cabinet on what the Supreme Court would be likely to hold, also confronted with confusing and poorly executed judgments of past Supreme courts, especially in the Crotty and McGimpsey cases. I critiqued these judgments in a previous post (I would like to acknowledge the excellent and helpful contributions in the comment sections by Professor Gerry Whyte and Joe Noonan). These judgements may not now be clarified for some time, leaving a heavy haze of uncertainty brooding over our constitutional relationship with international legal institutions. It would be very helpful in trying to understand the issues involved, and in communicating our position to a surprised Europe, if there could be some further information of the precise legal grounds for pursuing the referendum. Ultimately, however, Taoiseach Kenny stressed that it was the uncertainties caused by the unique status of the agreement – as a document of public international law rather than European Union law, that triggered the most concern from the Attorney General. Her analysis would have centered on discerning to what extent the Treaty successfully ‘piggybacked’ on existing, constitutionally immune EU powers. On reading the Irish Times earlier in the week, the professed confidence of Michael Link, the German Minister for European Affairs, that the agreement had been drafted to avoid a referendum, was undermined immediately for me by his admission that

As you know, concerning the next European Council, there are still ongoing negotiations concerning the role of the European Court of Justice. Also there, we are trying to design everything that is on the table in a way which would be okay in the eyes of the Attorney General and the Irish Constitution so that no referendum is needed

This seems to imply, that as we now move to the process of constructing a wording, there remained moving pieces on the board. This openness must not have been sufficient to reassure some fundamental concerns the Attorney General had regarding the Court’s role.

Whatever ambiguity there was could have gone against Ireland on the international sphere. Even if the Supreme Court upheld a Government attempt at ratification-through-legislation, there appeared no guarantee that other countries could not take an enforcement action against us before the European Court of Justice, arguing that we had insufficiently ratified the Treaty. While  the mechanics of supervision by the European Court of Justice and the interlinkages with the European Stability Mechanism are still being ironed it, it remained a possibility that Ireland’s position on what was necessary could be disturbed.

Taoiseach Kenny will sign the Treaty on Thursday; just a reminder that this does not render the referendum retrospective, a signature of an international law treaty is only a statement of intent to ratify a concluded text.  In deciding the ultimate wording, we must not forget the interlinkages of the Treaty with the European Stability Mechanism Treaty and extract final fixed statements on ECJ enforcement. There will, of course, be political and economic calls for a reassessment of the text and incentives for Ireland to vote ‘yes’. As a lawyer, I would simply comment that the ‘turn to law’ in all this was triggered by the domestic political concerns of dominant Member States. The loss of flexibility that results from the exclusion of alternative policies is something Europe as a whole should take the chance to consider, for as others have warned have ‘rules are not necessarily the best basis for policy’. Before we fossilise things through the use of law, are we confident of the content of our commitments? I would encourage all to read Karl Whelan’s recent piece here. Is Europe trying to substitute the superficial, formal credibility of rigid legal promises for the altogether more truly credible solution of a co-ordinated, economically cogent response? A Treaty whose production was tied heavily domestic politics in Member States, will find its future similarly tied. Showing us, once more, that for all our enormous economic problems, governance problems remain fundamental to the European Union’s future.

 

We here at humanrights.ie will continue to cover these issues over the coming days and weeks as we move towards a wording in a Referendum bill.

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Written by Darren O’Donovan

Darren O’Donovan is an Assistant Professor at Bond University in Queensland, Australia having previously lectured at University College Cork. His research interests are in administrative justice, equality and minority rights, particularly the rights of Irish Travellers. You can contact him at dodonova@bond.edu.au