YESTERDAY’S STATEMENTS by euro zone leaders and by European Council president Herman von Rompuy indicated that some newly-agreed measures will be contained in a new inter-governmental treaty. This treaty will be signed by all 17 euro zone states (including Ireland) and six non-euro zone states (Bulgaria, Denmark, Latvia, Lithuania, Poland and Romania).
Three other states, the Czech Republic, Hungary and Sweden, are consulting their parliaments but may well sign up. Only the UK remains outside for certain.
The idea of such a new treaty is very strongly reminiscent of the border-busting Schengen Treaty of 1985 – a treaty which was also adopted outside the EU framework because of intransigent British opposition.
Some agreed changes will also be implemented as “secondary legislation”, however – in other words sub-treaty level EU laws, which could mean anything from (a) normal EU laws, to (b) measures under article 136 of the treaty binding euro zone states alone, to (c) other so-called enhanced co-operation measures.
Is a referendum required in Ireland on any of this? Not in the case of the secondary legislation. This would be covered by article 29.4 of the Irish Constitution (which authorises Irish membership of the EU and immunises laws, acts and measures necessitated by the obligations of membership).
The new inter-governmental treaty (likely to be signed next March) is a very different matter, however. Such a treaty will not be regarded as immunised from constitutional attack because it is “necessitated by the obligations of membership”, going by the Supreme Court decision in the 1987 Crotty case.
Can it be said, however, that the article 29.4 authorisation of Irish EU membership somehow authorises participation in this treaty as well? Again, not if one goes by the 1987 Crotty case. There the Supreme Court held that Title III of the Single European Act was not so authorised by article . 29.4 simply because it did not actually amend or add to the then-existing treaties. The treaty proposed yesterday will not amend or add to existing treaties either.
If article 29.4 of the Constitution provides no protection for the new treaty, then it lacks any shield of constitutional authorisation or immunity. It will be open to constitutional attack under any provision of the Constitution – just like Title III of the Single European Act in the Crotty case. Ratification was regarded as unconstitutional then because of a super-sensitive interpretation by the Supreme Court of the constitutional provisions relating to sovereignty.
The court was later to retreat from this approach in the 1990 McGimpsey case – but even the approach to sovereignty adopted there seems not entirely unproblematic. Other constitutional provisions that could be used to attack the ratification of this new treaty include article 28 and articles 17 and 21. A referendum is likely to be needed to ratify this treaty. This time, however, a No vote will hold back Ireland – not the other states.
Gavin Barrett is a senior lecturer at the school of law in UCD, specialising in European law