A referendum after all: Ireland and the new EU treaty

This post originally appeared on Politics in Spires.

Earlier today 25 EU member-states signed the Treaty on Stability, Coordination and Governance (the UK and the Czech Republic have opted out of the treaty). In an earlier post I considered whether any EU member-states would hold a referendum on the new treaty. In that post I argued that despite long declaring that they would not hold a referendum, Ireland was the most likely to hold one. Despite their earlier statements, Ireland announced on Tuesday that it would be holding a referendum to ratify the new treaty after all.

Exactly why Ireland will hold a referendum is worth closer scrutiny. Ireland has held referendums on all European integration treaties from the Single European Act (SEA) onwards. Originally the Irish government tried to ratify the SEA through parliament. The basis of this decision can be found in the amendment to the Irish Constitution that allowed Ireland to join the European Communities in 1973. In full, this states:

The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.

Although perhaps not initially obvious from the legal wording of the text, the key part of this amendment is the section that allows the government to enact laws that are an ‘obligation of membership of the Communities’. The Irish government announced that signing up to the SEA was such an obligation, and that it would enact a law to ratify it.
However, that decision was challenged by a prominent Irish Eurosceptic, Raymond Crotty, who took the government to High Court. In the resulting case, Crotty v. An Taoiseach, the court found that the provisions of the SEA relating to foreign policy cooperation were a new development in European integration and were not an obligation of membership. Consequently, the SEA required an amendment to the Irish constitution in order to be ratified, which required a referendum.

The Irish government has held a referendum on every treaty since, but the ‘obligation of membership’ principle has never been tested in court. For a while it seemed as though the current government was willing to mount this challenge, and until Tuesday it had said it would not hold a referendum. However, according to the Irish Times, the government received legal advice that because the new treaty was signed outside the architecture of the EU it required a referendum.

Despite this, there are reasons to suspect that this wasn’t a decision made purely on legal grounds. The new treaty had been designed to try and avoid a referendum from the start. The provisions of the new treaty are a far cry from the introduction of foreign policy cooperation in the SEA: for the most part they are small adjustments to fiscal rules that have existed since the 1992 Maastricht treaty. Although, there is the intriguing possibility that by refusing to sign the UK up to the new Treaty and forcing it to officially exist outside EU institutions, David Cameron scuppered the Irish government’s plan to avoid a referendum, political expediency seems a more likely explanation. The Irish government has slumped in recent opinion polls, and there is strong public support for a referendum. Faced with this pressure, the sudden change in the government’s stance on a referendum seems more understandable from a political perspective than a legal one.

Chris Prosser is a DPhil student in Politics at St. Catherine’s College, Oxford. 

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