State needs to rethink handling of EU treaties
Holding referendums on all major treaties is not the right approach
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.
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.
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