State needs to re­think han­dling of EU treaties

Hold­ing ref­er­en­dums on all ma­jor treaties is not the right ap­proach

The Irish Times - - Opinion&analysis - Der­mot Hod­son and Imelda Ma­her

Brexit is a cru­cial is­sue for Ire­land’s EU mem­ber­ship but it is not the only one. An im­por­tant but ne­glected ques­tion is how Ire­land should seek to ap­prove fu­ture EU treaty changes. The cur­rent prac­tice of hold­ing ref­er­en­dums on all ma­jor treaties stems not from the Con­sti­tu­tion but the risk-averse re­sponse of the Gov­ern­ment to a court chal­lenge 30 years ago. The Gov­ern­ment – or bet­ter still the Cit­i­zens’ As­sem­bly – should seek a bet­ter bal­ance for the peo­ple, the Oireach­tas and courts on this im­por­tant is­sue.

Ire­land was once an out­lier in the EU be­cause it held ref­er­en­dums on EU treaty changes but no longer. In­creas­ingly, other mem­ber states al­low treaty-re­lated ref­er­en­dums. Na­tional par­lia­ments and courts gen­er­ally have a much greater say too. But our re­search com­par­ing EU treaty-mak­ing in the (cur­rent) 28 mem­ber states over the last 60 years shows that Ire­land has the most strin­gent rules on treaty ap­proval in some ways and some of the weak­est in oth­ers.

A ref­er­en­dum on ma­jor EU treaties is not man­dated un­der Ire­land’s Con­sti­tu­tion, save for a 2002 pro­vi­sion con­cern­ing a com­mon de­fence pol­icy. The Gov­ern­ment sought, in 1986, to ap­prove the Sin­gle Euro­pean Act via par­lia­men­tary chan­nels alone but this de­ci­sion was chal­lenged in the courts by the late Ray­mond Crotty. His vic­tory was twofold. First, he es­tab­lished that cit­i­zens could ask the courts to halt the ap­proval of EU treaties. Sec­ond, he con­vinced the Supreme Court that the Sin­gle Euro­pean Act ne­ces­si­tated a change to Ire­land’s Con­sti­tu­tion and so a ref­er­en­dum.

EU le­git­i­macy

Ir­ish ref­er­en­dums on all ma­jor EU treaty re­vi­sions be­came the norm there­after not be­cause the Supreme Court de­manded it ev­ery time but be­cause suc­ces­sive gov­ern­ments sought to avoid los­ing fur­ther court chal­lenges. Ref­er­en­dums were winnable, the Gov­ern­ment gam­bled, be­cause of strong pub­lic sup­port for the EU, a strat­egy that back­fired with No votes against the Nice and Lis­bon Treaties. The Gov­ern­ment’s de­ci­sion to hold sec­ond ref­er­en­dums saved th­ese treaties but dam­aged the EU’s le­git­i­macy.

Ire­land is also one of only four re­main­ing EU mem­ber states (along­side Ger­many, Latvia and Slo­vakia) to al­low cit­i­zens to chal­lenge the con­sti­tu­tion­al­ity of treaties prior to en­act­ment. Ger­many’s Fed­eral Con­sti­tu­tional Court, es­pe­cially, has be­come a fa­mil­iar ac­tor in EU treaty-mak­ing but 10 mem­ber states al­low no such con­sti­tu­tional chal­lenges.

The role of the Oireach­tas in ap­prov­ing EU treaties is weak, the Gov­ern­ment re­quir­ing only sim­ple ma­jori­ties in the Dáil and the Seanad. Fif­teen EU mem­ber states re­quire a three-fifths ma­jor­ity or higher for ma­jor treaty amend­ments, giv­ing par­lia­ments a sig­nif­i­cant say over the fu­ture of the EU.

Each mem­ber state must ap­prove EU treaties in ac­cor­dance with its con­sti­tu­tion. This is cor­rect be­cause the EU treaties are the foun­da­tions of the EU and should not be cut loose from na­tional con­sti­tu­tions and democ­ra­cies.

Ma­nip­u­la­tion

At the same time, Ire­land should think care­fully about how it ap­proves treaties. Whether ref­er­en­dums are the best way to ap­prove treaties is de­bat­able. In­deed, along with Switzer­land and Palau, Ire­land is one of very few states world­wide to hold fre­quent treaty-re­lated ref­er­en­dums.

If noth­ing else, Brexit shows how li­able ref­er­en­dums are to ma­nip­u­la­tion and mis­un­der­stand­ing. The Mar­riage Equal­ity and Eighth Amend­ment votes high­light how ref­er­en­dums suit sin­gle-is­sue ques­tions rather than com­plex treaties. And yet, ref­er­en­dums pro­vide op­por­tu­ni­ties for dis­sent that the EU some­times lacks.

If the cur­rent prac­tice con­tin­ues, Ire­land needs greater clar­ity as to what kinds of EU treaties trig­ger ref­er­en­dums, like in Den­mark. It would be de­sir­able for TDs and Sen­a­tors to get a big­ger say by rais­ing the thresh­old for par­lia­men­tary ap­proval. The pros and cons of al­low­ing cit­i­zens (or more com­monly cam­paign­ers) to chal­lenge the prior con­sti­tu­tion­al­ity of EU treaties should be ad­dressed.

Brexit re­mains Ire­land’s pri­mary fo­cus for the time be­ing but life for the EU goes on. It is only a mat­ter of time be­fore the EU amends its treaties again and, in­deed, some see Brexit as a good mo­ment to do just that. Ire­land should think about how it will ap­prove th­ese treaties to en­sure changes are de­bated and fully em­bed­ded in our con­sti­tu­tional and demo­cratic pro­cesses.

Der­mot Hod­son is reader (as­so­ciate pro­fes­sor) in po­lit­i­cal econ­omy at Birk­beck Col­lege, Univer­sity of Lon­don and Imelda Ma­her is the Suther­land full pro­fes­sor in Euro­pean Law at Univer­sity Col­lege Dublin. Their book, The Trans­for­ma­tion of EU Treaty Mak­ing: The Rise of the Peo­ple, Par­lia­ment and Courts, is pub­lished by Cam­bridge Univer­sity Press

‘‘ It is only a mat­ter of time be­fore the EU amends its treaties again and, in­deed, some see Brexit as a good mo­ment to do just that

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