There has been some debate following the release of the summit statement by the EU Heads of State on the 9th of December about the need for a referendum in Ireland to adopt the new rules. Minister Lucinda Creighton has been quoted as putting the odds of a referendum at "50-50" (no explanation as to how she got to those precise numbers). Tanaiste Eamon Gilmore stated in parliament last week that a referendum would be held "if needed." Today's Irish Times reports that the government is seeking legal advice on the issue and that it would take several months to arrive at a determination about the need for a referendum. The article also quotes one source stating a "hunch" that a referendum would be required.
I am not persuaded about the legal need for a referendum at this stage. The executive branch possesses exclusive competence to enter into international agreements in many consitutional democracies. Ireland is no different. The primary check on the abuse of this power is through the usual political process. But the Irish Supreme Court in Crotty v. An Taoiseach (1987) ruled that the "powers [to enter into international treaties etc] must be exercised in subordination to the applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints." Justice Walsh - one of the three judges in the majority - wrote further that "[i]f it is ... desired to qualify, curtail or inhibit the existing sovereign power to formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action."
One can argue, with some justification, that the judges in the majority are reaching too far into an area that is within the exclusive competence of the executive branch. Courts are not well placed to second guess executive decisions in the foreign relations area and it is preferable for judges to abstain from judicial review unless constitutional rights are clearly violated.
Still, even with this decision, it is not necessarily the case that a referendum is legally required in order to adopt the new EU rules. The judges in the majority seem to have limited the need for a referendum where there is a clear qualification, curtailment or inhibition of Irish sovereignty. It is perfectly sensible to argue that existing EU rules already occupy the field sought to be covered by the new rules and that there is no new curtailment of sovereignty. Rather, the new rules merely seek to operationalize the existing grant of sovereign power in favor of EU institutions by setting in place verifiable mechanisms with consequent sanctions for breach of treaty commitments. Under this view, a referendum is not necessary as there is no new transfer of sovereignty. In addition, one can argue that sovereignty in this area has also been transferred to the EU/IMF as part of the bailout agreement and nothing new is being done pursuant to the summit.
In conclusion, it is not clear that there is a legal necessity at this stage for a referendum in Ireland. The question will turn on the precise wording of the new treaty and it may be possible to draft it in a way that avoids the need for a referendum.
I am not persuaded about the legal need for a referendum at this stage. The executive branch possesses exclusive competence to enter into international agreements in many consitutional democracies. Ireland is no different. The primary check on the abuse of this power is through the usual political process. But the Irish Supreme Court in Crotty v. An Taoiseach (1987) ruled that the "powers [to enter into international treaties etc] must be exercised in subordination to the applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints." Justice Walsh - one of the three judges in the majority - wrote further that "[i]f it is ... desired to qualify, curtail or inhibit the existing sovereign power to formulate and to pursue such foreign policies as from time to time to the Government may seem proper, it is not within the power of the Government itself to do so. The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the people the contemplated restrictions upon freedom of action."
One can argue, with some justification, that the judges in the majority are reaching too far into an area that is within the exclusive competence of the executive branch. Courts are not well placed to second guess executive decisions in the foreign relations area and it is preferable for judges to abstain from judicial review unless constitutional rights are clearly violated.
Still, even with this decision, it is not necessarily the case that a referendum is legally required in order to adopt the new EU rules. The judges in the majority seem to have limited the need for a referendum where there is a clear qualification, curtailment or inhibition of Irish sovereignty. It is perfectly sensible to argue that existing EU rules already occupy the field sought to be covered by the new rules and that there is no new curtailment of sovereignty. Rather, the new rules merely seek to operationalize the existing grant of sovereign power in favor of EU institutions by setting in place verifiable mechanisms with consequent sanctions for breach of treaty commitments. Under this view, a referendum is not necessary as there is no new transfer of sovereignty. In addition, one can argue that sovereignty in this area has also been transferred to the EU/IMF as part of the bailout agreement and nothing new is being done pursuant to the summit.
In conclusion, it is not clear that there is a legal necessity at this stage for a referendum in Ireland. The question will turn on the precise wording of the new treaty and it may be possible to draft it in a way that avoids the need for a referendum.
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