BACKGROUND: The Irish courts are unlikely to insist the Government brings the EU-IMF agreement before the Dáil
ANY LEGAL action seeking to force the Government to bring the EU-IMF agreement before the Dáil is unlikely to succeed, according to legal experts.
Labour Party justice spokesman Pat Rabbitte raised the issue on Monday, citing Article 29.5.2 of the Constitution, which states: “The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.”
The issue hinges on the nature of international agreements, according to constitutional expert Prof Gerry Whyte of Trinity College Dublin.
International agreements are normally lodged with the UN and provide for the settlement of any dispute about their interpretation. This is not the case with the funding agreement with the IMF, he said.
The Irish courts are very reluctant to get involved in what they see as a political issue, he added. In the recent High Court challenge to the National Asset Management Agency (Nama), the divisional court repeatedly stressed it had no role in ruling on Government policy in this area.
The higher courts have stressed they have no role in deciding on social and economic rights and the distribution of resources.
Dr Darren O’Donovan of UCC agreed, but stressed the importance of publishing the letters of intent and memoranda of understanding as soon as possible, before the budget on December 7th, so there can be a full public discussion on them.
He said the IMF has traditionally been quite clear that it does not regard memoranda of understanding as binding international agreements, and has required its staff to avoid binding or contractual language in their drafting.
“The IMF is, in essence, relying on its market influence and the reality of our economic dependency to enforce its conditions. If we breach conditions it will not be legal power that is mobilised, but the fund may suspend payments, with severe consequences for our bond yields,” he said.
It appeared therefore that the agreement did not constitute an international agreement under the constitutional provision. While this means the Government is not required to bring it before the Dáil, it also means that if Ireland fails to meet a memorandum target, it is not in violation of international law.
More adversely it means that should we end up in dispute with the IMF over the meaning of the terms, our recourse to international courts or arbitration is limited, he said.
He warned that there are circumstances where even political statements can become binding, and it was essential that the government ensure that the memoranda contain disclaimers which rule this out.
Dr O’Donovan said the status of the European Stabilisation Fund is less clear than that of the IMF, and its establishment is currently being challenged in the German constitutional court.
While he thought it unlikely the Irish courts would question the Government’s approach, he pointed out that measures required by the IMF had been challenged elsewhere.
The issue here was not about social and economic rights and the distribution of resources, which the Irish courts consider the prerogative of the executive and the legislature, he said, but the rule of law and the need to pass laws which are
proportionate and based on an adequate assessment of the choices facing us.