A New Referendum?

My presumption has been that any set of “fiscal union” measures of the type mentioned here will require a referendum. Far more trivial international agreeements have required them, so surely this would too. Eoin reckons it can be avoided via some Lisbon-related maneuver.

I’m not a constitutional expert but some of our readers must be. What do people think? Can we get some concrete cites to the relevant articles or protocols.

73 thoughts on “A New Referendum?”

  1. Here’s the Irish Constitution (pre Oct referendum)

    http://www.constitution.ie/reports/ConstitutionofIreland.pdf

    I would have said that provisions around Article 17 would mean a referendum was required.

    But then again, I thought the creation of promissory notes by former Minister for Finance, Brian Lenihan required a vote in the Dail.

    “Article 17 (2) Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.”

  2. The whole response to the Crotty judgement has been a mess. The course taken of a one liner yay/nay to an international treaty is wrong, instead:
    1) A yay or nay vote is needed if issue affects sovereignty
    2) Specific details should be achieved as ammendments to specific articles

    That #2 hasn’t been done is a HUGE problem…as Bunreacht is now longer compact/integrated. It means that you’ve to read it alongside said treaties, and the volume and precision of those is a huge issue (Lisbon II had more words than Bunreacht).

    Now there doesn’t need to be a referendum for each EU treaty, just ones where sovereignty (1) is an issue…now Merkel etc could probably craft some clever language to avoid this…however…treaty specifics that conflict with existing Bunreacht articles (2) would be a huge issue. And trying to determine if said treaty conflicts with Bunreacht is made ridiculously hard by the fact you’ve to read Bunreacht alongside all the previous treaties.

    If the AGs of the day had done their jobs, and ammended the specific bits of Bunreacht…then checking new treaty against it wouldn’t be so hard …however the AGs didn’t, instead preferring the easier option.

    Without a tremendous amount of remedial work….I don’t think the govt will be able to avoid a referendum.

  3. As a general guideline, and according to the Referendum Returning Officer, who is appointed by the Minister for the Environment, Community and Local Government, these are the relating laws

    – Articles 27, 46 and 47 of the Constitution of Ireland
    – The Electoral Act 1992
    – The Referendum Act 1994
    – The Electoral (Amendment) Act 1996
    – The Referendum Act 1998
    – The Referendum Act 2001

    http://www.referendum.ie/downloads/The%20Referendum%20in%20Ireland.pdf

  4. …and for what it is worth, it is my opinion that such changes and set of measures should be brought forward to a european wide referendum.

  5. This is bad. A begrudging thank you to Bond, Eoin Bond for bringing this point of view up. Know you probably couldn’t give a toss but my hatred of the money lending industry is not personal – probably some decent people in it.
    So there we might have it – signed sealed and delivered to at least a generation of servitude. Wow. The truths a pain

  6. @all
    So to give some type 2 examples re above:

    a) Bunreacht internal
    Bunreacht has quite a bit to say about fiscal matters (member in charge of finance,C&AG,money bills etc). Any of these could conflict with the Merkel changes

    B) Bunreacht external
    If this new EU treaty ammends previous EU treaties…then of course a new referendum is needed, as those treaties are an external part of Bunreacht

  7. @Karl W

    My presumption has been that any set of “fiscal union” measures of the type mentioned here will require a referendum.

    Discussed here: http://www.irisheconomy.ie/index.php/2011/11/16/promissory-notes-as-the-price-of-%E2%80%98yes%E2%80%99-to-treaty-change/#comment-193784.

    The practice has been to put anything to the people, but my understanding is that referenda are needed only when the High/Supreme Court consider a changes to be “large enough” to warrant it.

    One suspects that Enda Kenny, when considering his bargaining chips, will be cute enough to insist that any change needs a referendum. I wouldn’t even put it past our learned friends on the bench to realise this too.

  8. One of four things will happen:

    The government will decide a referendum is required.

    The government will decide that a referendum is not required, and therefore attempt to push it through. They could succeed, albeit with a significant loss of political capital.

    The government will decide that a referendum is not required, but when someone appeals it to the supreme court, they decide that this treaty does not alter the relationship with the EU, and it passes.

    The government will decide that a referendum is not required, but when someone appeals it to the supreme court, they decide that a referendum is required.

    I genuinely can’t see either the government going against the grain here and pushing it through without a referendum which, whether it should be or not, is widely expected OR the supreme court not deciding this is a substantial change in our relationship with Europe, which to be honest, it is.

    If I was the government, I’d want a referendum politically. It might fail sure, but if it passes, they have a much stronger mandate and loss much less politically than if they push it through. Beyond that, it’s a useful negotiating tool with the rest of the EU, as we have to get something out of the deal otherwise there’s a strong chance it’ll fail.

    If you want to get a better understanding of these issues, I suggest Gavin Barrett’s paper on Crotty, Coughlan and McKenna here – http://www.iiea.com/publications/a-road-less-travelled-reflections-on-the-supreme-court-rulings-in-crotty-coughlan-and-mckenna-no2

  9. Constitutional Experts
    The Govt could try to approve a treaty witout referendum. Would the Prez be asked to convene the Council of State to advise that the govt was right? IF they affirm that the govt is correct in its approach could a citizen challenge that decision?

    My understanding is that if the Prez sent the case to the SC then the decision would be final…is that correct?

    In any event, would the govt risk avoiding a vote? Imagine the howls from the usual supects on the left and right but also from an increasingly disenchanted centre. Now if FF wanted an issue to get back in the game, imagine opposing a Treaty.

  10. I don’t think they need a new treaty at all. The treaty provides mechanisms to override national parliaments completely. It won’t take long for them to figure this out.
    They don’t need a debt brake in constitutions – they just need to pass a law mandating that deficit is held within x and if it isn’t country will be fined or the equivalent.
    From my reading of Lisbon we are fubbard.
    Strength in numbers though. Let’s hope this european nightmare ends v soon.

  11. @ Tull/Dave

    the key thing here is that it will not be described as a “treaty”, or even a “treaty change”. It will be described as some “minor amendments/revisions to existing protocols which form part of the Lisbon Treaty, to make them more efficient and to be able to handle the current crisis without having to go down the very lengthy procedural route that a treaty entails. This could be done over a weekend. Whether Kenny is willing to risk the wrath of an Irish electorate, who will see it for what it really is, is the question. I suspect that he’ll play that hand at EU level and say that he either needs a big monetary “win” he can show to the Irish people, or he will have to go down the referendum route as is traditional in Irish dealings with the EU. The EU will, of course, go ballistic, and i think there will be some informal suggestions that ECB will not engage in buying Irish bonds until Ireland signs up to this new agreement.

    And i agree Tull, FF wil likely pitch themselves as the pro-Euro-but-deeply-skeptical party, with SF joining in to. Most of the independents will too, so you’ll probably have 33% of the Dáil going against it.

  12. “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”

    But there is one solution. That we have a referendum to undo Lisbon…

  13. Eureka,

    we are under an effective debt brake anyway. Nobody other than the Troika would lend to us or indeed the banks. Now closing the budget deficit to zero-not the primary deficit-but the deficit would give us an Ace in the hole.

    It will be interesting to see what demands are made of other nations and how they react.

  14. @Zhou
    The consolidated treaty is not relevant to Bunreacht, as, unfortunately we passed Lisbon rather than it 🙁 …tho of course in theory the consolidated version shud reflect its substituent parts…and certainly is a LOT easier read than say Lisbon (which has u hopping all over the place to the other treaties)

  15. @Eureka

    Not really. We amended our constitution to say EU law is supreme. Accordingly, it is unconstitutional to amend our law (e.g. by jettisoning treaties) in a way that is inconsistent with EU law.

  16. My guesstimate is that the Rompuy proposals soon to be released will be presented by Kenny as existing within the current framework, hence he will se no requirement for a referendum.

  17. Maybe a legal professional can clear a few things up. In Ireland:

    Does the government or the courts interpret laws & pass judgement?

    Does the government or the parliament approve the laws?

    Can the constitution be changed without following the steps as described in the constitution?

    If an agreement that violates the constitution is entered into by the government, is that agreement legal?

  18. @ Zhou
    But there is nothing in European law to prohibit a referendum and
    If there was how would they enforce it given that once the referendum was passed they’d have lost legitimate jurisdiction

  19. Am I right in thinking that we signed up something recently that allows the government decide what is right for us without a referendum. I seem to remember it was discussed that in light of a failed vote, the government could commit election hari-kari and sign us up anyway. Maybe I was dreaming that !

    I could not see any situation in which the general population would vote for any EU treaty.

  20. Citizens of the EU Der Spiegel International Today

    How to Forge a Common European Identity

    By Thomas Darnstädt, Christoph Schult and Helene Zuber

    Europeans are searching for an idea: What should the Europe of the future look like? Could a federation of European nations function? How could a working government in Brussels be structured? And could a continent-wide democracy foster unity and solidarity among European nations? In a three-part series, SPIEGEL reports on new plans to restructure the European Union. This is Part 3. Be sure to also read Part 1 and Part 2.

    Europe has a face. It can grin, and it has freckles. Almost everyone in Germany knows it. It’s the face of Daniel Cohn-Bendit, 66, the Green member of the European Parliament and former revolutionary.

    No one else can explain Europe the way “Red Dany” can. No one but this polyglot global citizen can convince people in almost every country on the continent to listen and to pick up at least some of the enthusiasm he exudes for Europe. “There will be a United States of Europe,” he says. “I’m sure of that.”

    http://www.spiegel.de/international/europe/0,1518,800775,00.html#ref=nlint

    Spose it will depend of what The next Referendum is all about? Very open question …………

  21. As I have said before modern republics / nation states origins lie in the Cabinet wars of the 17th & 18th century.
    This was a fusion of democracy , banking & war making.
    The Dutch bankers were at the heart of this and this resulted in the clearances of Ireland & Scotland and the destruction of the Tribal / clan structure.
    In a great article Micheal Hudson speculates that this fusion of Bankers & republics have come to a end – with a modern decline of Rome following from this rentier structure.
    Go to Naked Capitalism : Michael Hudson: Debt and Democracy – Has the Link Been Shifting Planning Away From Elected Public Representatives To Bankers

    “Every economy is planned. This traditionally has been the function of government. Relinquishing this role under the slogan of “free markets” leaves it in the hands of banks. Yet the planning privilege of credit creation and allocation turns out to be even more centralized than that of elected public officials. And to make matters worse, the financial time frame is short-term hit-and-run, ending up as asset stripping. By seeking their own gains, the banks tend to destroy the economy. The surplus ends up being consumed by interest and other financial charges, leaving no revenue for new capital investment or basic social spending”

    “The resulting conflict is pitting financial interests against national self-determination. The idea of an independent central bank being “the hallmark of democracy” is a euphemism for relinquishing the most important policy decision – the ability to create money and credit – to the financial sector. Rather than leaving the policy choice to popular referendums, the rescue of banks organized by the EU and ECB now represents the largest category of rising national debt. The private bank debts taken onto government balance sheets in Ireland and Greece have been turned into taxpayer obligations. The same is true for America’s $13 trillion added since September 2008 (including $5.3 trillion in Fannie Mae and Freddie Mac bad mortgages taken onto the government’s balance sheet, and $2 trillion of Federal Reserve “cash-for-trash” swaps).

    “This is being dictated by financial proxies euphemized as technocrats. Designated by creditor lobbyists, their role is to calculate just how much unemployment and depression is needed to squeeze out a surplus to pay creditors for debts now on the books. What makes this calculation self-defeating is the fact that economic shrinkage – debt deflation – makes the debt burden even more unpayable.”

    Dork :We are witnessing the modern fall of Rome – just as back in antiquity the world was globalized thus no new dynamic could reverse this momentum collapse into dark age entropy.
    However certain sections of the population may get another 100 / 200 years of relative prosperity , then again the barbarians may already be inside the gate.

    The Dark warnings of Carroll Quigley come to my mind
    “The powers of financial capitalism had another far reaching aim, nothing less than to create a world system of financial control in private hands able to dominate the political system of each country and the economy of the world as a whole. This system was to be controlled in a feudalist fashion by the central banks of the world acting in concert, by secret agreements, arrived at in frequent private meetings and conferences. The apex of the system was the Bank for International Settlements in Basle, Switzerland, a private bank owned and controlled by the worlds’ central banks which were themselves private corporations. The growth of financial capitalism made possible a centralization of world economic control and use of this power for the direct benefit of financiers and the indirect injury of ALL OTHER ECONOMIC GROUPS”
    Its the Venetian banks stupid – they want to reengineer the nation state into something profoundly peverse.

  22. Michael Higgins, President, might refer any legislation to the Council of State/Supreme Court, but there is some doubt about this because financial powers may be excluded.

    However, if a majority in the Senate and one third Dail Vote allowed for this, he could refer doubtful bills to Supreme Court, as the Government appoints a majority to the Senate, this is perhaps why that power has never been exercised,

    http://en.wikipedia.org/wiki/Council_of_State_(Ireland)#Referring_of_bills

    http://en.wikipedia.org/wiki/President_of_Ireland#Discretionary_powers

    Irish Constitution:

    29.10 copperfastens any Lisbon changes or other EU Treaty changes, however 29.10 clearly is a retrospective claim on acts already done and clearly does not in any way endorse EU treaty changes not already in place:

    “10° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”

    However, it seems to me the main articles that protect sovereignty and prohibit changes that would conflict with these rights are the fundamental rights laid down in Article 5 and 6:

    Article 5

    Ireland is a sovereign, independent, democratic state.

    Article 6

    1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

    2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

    Is the future going to be an Irish reenactment of Japanese foreign affairs minister Mamoru Shigemitsu signing the Japanese Instrument of Surrender on board USS Missouri September 2, 1945 ?

    We need a referendum to clarify if present negotiations and any agreements/Treaty Changes being contemplated are in conflict with Article 5 or article 6. If there is a doubt that these changes may effect our sovereignty in any way, those changes should be put to the people.

    There is also the possibility the Supreme Court could act against government found to be in violation of its duties to guard the constitution.

    It’s interesting this thread echoes a long history of conflict between ‘the pursuit of economic opportunity’ and the democratic rights of the people eg
    mid 19th century Jacksonian struggle against private banking interests eg
    http://bit.ly/t8EeUj

  23. @ All

    The commentary by Alan Barrett linked to by Ciarán O’Hagan on another thread some time ago is relevant.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1938659&amp

    Ireland has already agreed to amend Article 136 of the TFEU in order to allow Germany to ratify the treaty establishing the ESM but under the “simplified revision procedure” set out in Article 48 TEU. The government has already indicated that it does not think that a referendum will be required as the proposal does not alter the “essential scope and objectives” of the treaties and, therefore, does not fall under the Crotty judgement requirement for the holding of a referendum. Indeed, this reasoning is comforted by the fact that Article 48 stipulates that competences cannot be transferred under the article.

    In short, with regard to the requirement for a referendum, this can only be established when the agreed wording of the wider treaty amendments is known.

    As to international treaties, these are governed by a different article of the constitution and require only the approval of the Dáil if they have financial implications. The issue of a referendum does not arise.

    The Protocol on the Excessive Deficit Procedure can be altered to a legislative act by a unanimous decision of the Council under a “special legislative procedure” after having consulted the EP (Article 126.14 TFEU?).

    In other words, a menu of options exists, the key question for Ireland being how far the one adopted drifts from the institutional safety net of the treaties towards inter-governmentalism (which would be the context in the event of separate treaties being agreed).

  24. Keeping it very simple, the better argument, in my opinion, is that the Irish Constitution *allows* the supremacy of European law, but does not require or entrench that supremacy. For a longer version of that argument, see (with apologies) Phelan, William (2008), ‘Can Ireland Legislate Contrary to European Community Law?’, European Law Review, 33 (4), 530-49. That is the situation in many other Member States as well.

    But that is only tangentially related to the question of whether the Irish Courts would require a referendum even if the Irish government attempted to legislate a “fiscal union” without a specific constitutional amendment.

  25. I see our Man from Achill has taken matters into his own hands again – creating a structure that may be suitable for future human sacrifices when the time comes.
    I don’t like his aesthetic but you have to say the wild colonial boy has a pair of Liathordi.
    Maybe someone should suggest a more tradional structure, more recyclable and conducive to the landscape.

    http://www.youtube.com/watch?v=UEOQqnHMSMc

  26. I voted McGuinness as it was a no brainer moments like this would come and whatever decision he made would have been positive….
    go with the establishment=end of Sinn Fein….
    hang tough=insiders bricking it…

    President Higgins may yet be the center of attention in the near future. Will he do a Green Party and destroy themselves bailing out the people they spent years. Or rise to the challenge

    All that said, by far the biggest story of the week is the November tax numbers….

  27. I think it was just announced that Kenny is to address the Nation on Sunday after the 9 o’ clock news.

    ”…therefore we have unanimously decided to go with my suggestion; and will be impos… implementing the required changes to the Treaties until such time as these changes can be introuduced via, a, eh, Treaty.”

  28. @ DOCM

    I think you are misunderstanding the definition of ‘majority’ in the Treaties re changes on monetary/financial matters:

    For example you give the following example:

    The Protocol on the Excessive Deficit Procedure can be altered to a legislative act by a unanimous decision of the Council under a “special legislative procedure” after having consulted the EP (Article 126.14 TFEU?).

    6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union. The European Council may adopt a decision amending all or part of the provisions of Part Three of
    the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

    Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European Union.

    NB That decision(majority decision) shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements..

    In other words, the majority can agree what they like, but the Member States are required to ratify the majority decision, “in accordance with their respective constitutional requirements”

  29. Referendum or not, surely the important question is whither or wither Ireland out of the euro?

    Presumably, Ireland cannot block a new fiscal union, and in any event a negative vote would probably result in a very long postponement of any return to borrowing.

    I wonder how many celebrated multinationals would remain in punt land?

  30. There will be a referendum to undo Lisbon and we won’t leave the Euro but public sector wages and taxes will go back to the IEP.
    Logistically we’re making this ridiculously complicated on ourselves. Govt worker gets paid in IEP but with a Euro equivalent. You can keep wages steady and let your punt slide a bit. In all the turmoil there will be debt write down. Easy to do on a drifting currency.
    We’re over thinking this – there is no other way out

  31. It is quite interesting to consider how this feeds into the calculus that Honohan and co were talking about last year.

    Taking the credit line allowed slowed adjustment of the budget so had a smaller hit on GNP and avoided a failure to bank bond redemptions etc. Against that, it allowed all sorts of entrenched interests in Ireland to continue to be highly paid in a European context and even improve their comparative position within Irish society. It is mixed bag and it can be argued each way.

    Part of the cost was the imposition of external budgetary control, but this was time limited until exit from the programme, and there was domestic discretion over things like Corporate tax, minimum wage etc.

    Now Italy is in the mix, this is likely to be converted into a non-time-limited external control arrangement, and domestic flexibility seems exactly what Germany is looking to limit.

    Perhaps ‘bailout’ opponents should have also added to their arguments that once you take the credit line, you are not in a strong position to object if the terms are effectively changed.

  32. Merkel effected regime change in Italy and Greece without breaking a sweat.
    Ireland is hardly going to obstruct her grand design.The Germans are awake to the crisis now and are playing hardball.Regardless of the legalities ,Ireland must sign on next week or leave the euro,what other alternatives are realistically left?.

    The baseline for the Germans is what their supreme court ruled recently that Germany cannot be responsible for the collective debts of Euro countries.Merkel referenced that point today in her speech.

    Our own political and legal establishments are backed into a corner having assumed the debts of Irish and by extension German and French banks.They cannot plead any new treaty violates existing Irish law mandating fiscal supervision until its tested in the courts and by then the game will be over.

  33. @ Colm Brazil

    You are in the wrong treaty, the TEU (Treaty on European Union). Article 126.14 is in the TFEU (Treaty on the Functioning of the European Union). You might usefully post the text of the article as I do not have a text to hand.

    One may well ask why there are two treaties. The explanation lies in the desire of member states, notably the UK, to distinguish clearly between what the EU was doing in its traditional areas and in the strictly inter-governmental area of defence (to be found solely in the TEU).

    The point at issue is a simple one. The Crotty judgement set a test for whether a referendum was necessary or not based on what was proposed. As we do not yet know what the agreed changes are, we cannot make a judgement. All the rest is waffle.

  34. @Alchemist
    I could not live with myself if I voted for this monster for short term financial gain although the last time did not work out too well for anybody who really believed this euro crap.
    We have moved from Jungle , game peserve and now to Zoo – once you accept that you are dead meat anyway it frees you at least psychologically if not physically & Financially
    However the Keepers realize this and have therefore cut back on the meat ration – hoping we will begin to tear each other apart before we make any further connections.
    The Spectacle of the Marxist brothers & sisters on the VB show wanting to tax a declining money supply was good enough for me – the class war thingy is their final almost certain bet on capital preservation.

    http://www.youtube.com/watch?v=uw95EuYsPME

  35. @ All

    On the subject of treaties et al, the following extract from the speech by Sarkozy to which Grumpy drew attention is worth quoting in full.

    “Il doit être absolument clair que tous les pays de la zone euro seront solidaires les uns des autres. Il doit être clair que ce qui a été fait pour la Grèce, dans un contexte très particulier, ne se reproduira plus, qu’aucun État de la zone euro désormais ne sera mis en défaut. Il doit être absolument clair qu’à l’avenir aucun épargnant ne perdra un centime sur le remboursement d’un prêt accordé à un pays de la zone euro. C’est une question de confiance et la confiance conditionne tout”.

    “It should be absolutely clear that all the countries of the euro will show mutual solidarity. It should be clear that what has been done for Greece, in a very particular context, will not be repeated, that no other state of the euro zone will be placed in default. It should be absolutely clear that in the future no saver will lose a centime of the repayment of a loan accorded to a country of the euro zone. It is a question of confidence and confidence shapes everything”.

    No ambiguity there! But how does it ryme with the text of the ESM as signed?

  36. Phew
    i was wondering if we would get away with a ‘no blaming the public sector’ meme but Eureka has broken that dangerous trend.

  37. @eureka, Zhou et al

    The level of confusion is surprising, and reminiscent of the misinformation-fests that eu referendums here are. As I posted on an earlier thread, the basic Constitional position is quite straightforward (although there is plenty of room for legal complexity):

    “Ninap:
    November 17th, 2011 at 2:56 pm
    @OMF
    “I don’t know why people think we need to have a referendum in this country on any changes to any EU treaty.on Europe. The 28th Ammendment (Lisbon II) changed the Irish constitution to reverse the Crotty decision and make it so that Irish referendums on the EU were no longer neccessary.
    For those of you who actually read the amendment, you might remember this section, now section 29.4.4 of the Irish constitution:
    6. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—
    i. the said European Union or the European Atomic Energy Community, or by institutions thereof,
    ii. the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or
    iii. bodies competent under the treaties referred to in this section,
    from having the force of law in the State. “
    This argument arose during the Lisbon campaign, but it is based on a fallacy. There was no substantive change to the Constitution in this regard due to Lisbon. In fact, the existing wording (pre-Lisbon referendum) was almost identical:
    “10° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”
    This wording has existed since we joined the EEC. It gives necessary primacy to EU law (in areas where the EU has competence), as to fail to do so would allow for Ireland (or any State acting on the same principle) to resile from an unpopular EU law citing national prerogatives.
    The Crotty judgement (in respect of the Single European Act) related to whether ratifying the SEA was a measure “necessitated by the obligations of EU membership”, or whether it involved going beyond the original requirements of EU/EEC membership. The court ruled, narrowly, that ratification of the SEA wasn’t an obligation of membership. Successive Irish governments since have erred on the side of caution and have put ratification of EU Treaties to referendum, even when it could be argued that there was no substantive change in respective competences involved.
    In other words, the Government could decide to ratify any future Treaty change through the Oireachtas, but it would remain open to any citizen to challenge its constitutionality (just as heretofore). In all likelihood, the Government would put the issue to referendum.
    (The other Lisbon innovation that was mis-represented in the media is the simplified procedure to amend the Treaties themselves; this merely allows all EU Governments acting unanimously to agree Treaty changes without the need for a formal Intergovernmental Conference; national ratification procedures would remain as before.)”

  38. @Bond. Eoin Bond

    re “The EU will, of course, go ballistic, and i think there will be some informal suggestions that ECB will not engage in buying Irish bonds until Ireland signs up to this new agreement.”

    This time round it is different. IMHO any further threats from the ECB will be met with drastic action by the people.
    Personally I think any further threats from the ECB should involve Ireland pulling the plug and leaving the Euro and leaving the ECB with its €150 billion debt.
    More than enough to start a revitalised banking system.

  39. “Merkel effected regime change in Italy and Greece without breaking a sweat.”

    Roger Altman in the pink un today

    “In Europe, the elected leaders of five European Union members have been swept aside in just 18 months. Silvio Berlusconi’s near perpetual grip on power in Italy was broken almost overnight. Further, forced austerity is now spreading across Europe, despite public opposition.

    How did the markets amass so much power? The answers lie in globalisation, external imbalances and the surge of financial assets and financial technology. The expansion of global trade over the years led to a rise in global money flows. As Asia, India and Latin America became more global, the capital transfers between these regions and advanced economies grew. And it was the emerging countries that imported capital from advanced nations because internal savings were too small to finance development. But global finance changed when this historical pattern reversed. Many export-centred developing countries adopted conservative fiscal policies, which led to excess savings. China, for example, is sitting on $3tn of accumulated monetary reserves. In the US, savings declined and a large current account deficit developed. The result was an unprecedented recycling of capital from poorer countries to richer ones.

    This change – together with a surge in the use of technology, deregulation, the emergence of larger financial institutions and an ageing, and increasingly wealthy, population in the west – expanded the scale of finance and the pressure for investment returns. The ratio of global financial assets to global gross domestic product has grown from 2.5x to almost 4x since 1990. In absolute terms, such assets now total $212tn. America’s six largest banks have seen their total assets expand from 17 per cent of US GDP to 63 per cent over the same period.

    It was inevitable, then, that global trading volumes in financial assets would rise sharply. Bond and commodity investing, for example, were revolutionised by the introduction of new financial instruments, the availability of greater leverage and new technology.

    Whether this power is healthy or not is beside the point. It is permanent. Even a resumption of traditional patterns in global capital flows would not change it.

    But, above all, there is no stopping the new policing role of the financial markets.

    The new thousand year reich . Until climate breakdown changes everything

  40. “It is permanent”
    Never, ever has anything been permanent.
    This is obviously how these moneylenders see themselves. Immortal, invincible robocops of the modern world.
    Here is the hubris that ensures the tragic end

  41. @ Eureka

    Absolutely nuts

    Anyway what is the point of the budgets of EU member states being monitored if there is zero reform of the financial sector ? No bank resolution means they’ll **** it up again in another few years but on an even bigger scale. That of course is assuming we get out of the Japan trap which is a big if.

  42. Nah Seafoid – it is unsustainable as there is too many unproductive claims on depleting resourses but we just do not know when it will implode on itself although some argue it has already.

    It is either the Dollar or Gold – or perhaps maybe a bit of both although I think in the end there can only be one.
    But the presence of SPECTRE replacing Merrial Lynch in Dublin castle & elsewhere adds to the complexity.
    We have already established Bond is a double or perhaps triple agent assigned the counter espionage role on the Irish economy blog.
    http://www.youtube.com/watch?v=qzwZU3pgppo
    Still asking where did that little sum 17 Billion go Bond ?

    Are Irish mortgage holders financing the building of a secret cave in Japan or what.
    Looks to me they are paying good money on useless unproductive paper.

  43. @Sean@all

    “Ireland must sign on next week or leave the euro,what other alternatives are realistically left?.”

    Very good question ?

    IMHO either action should be subject to a referendum ideally on or around 26 January as if I was in Government I would be reluctant to take either decision without recourse to the electorate.

    IMHO the only “alternative” would be for the Government to take the decision to hold a referendum arising out of proposals which emerge on December 9th and not take a “pro or con” position. There are plenty of other groups who could advocate differing positions

    Hopefully other states would follow our example (and hold referendums)in February.

    However if we see more “kick and hope” statements then I think the Government should call a referendum but would have no choice other than to adopt a definte position :amicable structured ccurrency conversion.

    IMHO it is an advantage that Ireland has the General election behind it and no major representative elections for another 30 months.:)

  44. @ Livonian

    What about a referendum on next week’s budget?

    We have referendums in order to effect changes to our Constitution if such are required. As we do not yet know in what respect such a change may be required with regard to changes to the EU treaties, how can we decide now that a referendum is necessary?

    @ All

    Having just browsed through coverage of Merkel’s speech to the Bundestag, I was struck by another oddity. She is insisting on the European Court of Justice being empowered to adjudicate on the failure of countries to meet their obligations, presumably under the Excessive Deficit Procedure. How can this be done other than in a Community method context?

    The ESM provides for the resolution of disputes by the ECJ in certain circumstances but it is hard to imagine how such an approach would apply in this context.

    Cameron is undoubtedly right when he commented after meeting Sarkozy that “we will see what emerges next Friday”. It should be an interesting series of rabbits.

  45. @Karl@all

    As I understand it (I am also not a lawyer) Germany would also have to do some “maneuver” to avoid holding a referendum as a result of a Court decision around the time of the the Lisbon referendum.

    This would indicate to me that your guess (that Ireland would be compelled to hold a referendum) is probably correct.

    Perhaps the Irish Government is exercising strategic diplomacy by publicly “playing down” talk about a referendum. The address by the Taoiseach on Sunday night may provide some more insight into what will actually be discussed “behind closed doors” next Friday.

  46. @DOCM

    ” how can we decide now that a referendum is necessary?”

    We cannot “decide” anything until we know what exactly will be proposed.

    However we can “decide” what conditions would compel us to hold a referendums.

    IMHO one of those conditions is the CURRENT (increasingly precarious) “kick and hope” situation as would a “bulldozing fear factor”. 🙂

  47. “Il doit être absolument clair que tous les pays de la zone euro seront solidaires les uns des autres.”

    That’s great for the ELA then. 16 countries will chip in.

  48. @Seafoid
    I was wrong about the mans taste – as I only saw the structure in RTEs video in the driving rain.
    The picture of it on the Max Keiser blog is quite something
    It is both impressive & attractive with Celtic , Greek and early Celtic Tiger influences.
    It should become a Mecca for the eccentric masses – much like Drombeg stone circle is during Winter Solstice.
    We should all go there in 3 weeks to pray ,sing and………….

  49. Jesus the man has balls as big as Fionn Mc – I thought that madness was indoctrinated out of us………they will have a tough time taking Connacht and Donegal , maybe it will be more cost effective for it to revert back to a game peserve as the zoo thing is not working out that well that far west.

    I imagine some CBers in Dublin must be stressed – how are they going to Govern this place………. I can feel the madness spreading.
    I think there will be a good turn out in Cork tommorow.

  50. Let me think about the chances of a referendum…. are there any recent examples where the EC/Frankfort Groop have reacted badly to the idea of a referendum or have ‘persuaded’ people to vote again because the first answer wasn’t the right one? That may give us an indication of what’s likely to happen… Greece? … Slovenia?… Ireland?… etc.

    I have no doubt they will do everything they need to do to avoid any referendums because even in Euro-friendly countries like Holland and France they go ‘wrong’. If we see a referendum in Ireland linked to these changes I will stand in the CHQ building in the IFSC with a loud hailer for an hour on the day of the referendum, letting everyone know I got it wrong.

  51. … (cont’d) though I suppose it’s always possible that things will be arranged in such a way that a referendum will be ‘allowed’ so that they can ensure any negative return means being kicked out of the Euro as that might be the core’s preferred solution to getting rid of some of the periphery – we are just giving them what they asked for

  52. I suspect there will be an attempt to treaty by Dail vote and then ‘advise’ the President to refer it to the Supreme Court. This would both copperfasten the new mechanism and get the changes passed (should it be successful) or give the politicians breathing space (should it fail – “you’re not the only one, Frau Merkel, who has a constitutional court”).

    I also suspect that membership of the EU will be the stick for any changes – rather than the new treaty needing to pass unanimously for it to become law, failure to pass it will mean exit from the EU – the logic of treaty passing will be reversed.

    Another alternative for Ireland is for Herr Enda to declare a state of emergency on sunday night…

  53. This guy has some interesting points:
    http://theautomaticearth.blogspot.com/2011/12/december-2-2011-debt-walkers-strike.html

    A quote from the post:
    “We have a choice to make: either we save the banks, or we save our societies. Which are falling apart as we speak on account of the costs of saving an already deeply bankrupt financial system.”

    & something he links to:
    http://www.acting-man.com/?p=12083

    The comment with the quotes from ‘The Hitch-Hikers Guide to the Galaxy’ is quite good 🙂 I think I should re-read it again, the writing about democracy and lizards (if I remember correctly) is also quite good

  54. @Ninap

    “(The other Lisbon innovation that was mis-represented in the media is the simplified procedure to amend the Treaties themselves; this merely allows all EU Governments acting unanimously to agree Treaty changes without the need for a formal Intergovernmental Conference; national ratification procedures would remain as before.)”

    Sounds right. Thx for that.

  55. Lengthy – but perhaps useful extract;

    The headnote of the leading case Crotty v An Taoiseach [1987] 1 IR 713 reads;

    “Article 29, s. 4, sub-s. 3 of the Constitution states:—

    “3 The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”

    By treaties made at Luxembourg on the 17th February, 1986, and The Hague on the 28th February, 1986, and known collectively as the Single European Act (“the SEA”) the twelve Member States resolved to amend and in general expand the scope of the treaties of and governing the European Communities. Article 33 of the SEA provided:—

    “1. This Act will be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification will be deposited with the Government of the Italian Republic.

    2. This Act will enter into force on the first day of the month following that in which the instrument of ratification is deposited of the last Signatory State to fulfil that formality.”

    Title III of the SEA embodied a separate treaty whereby each of the High ContractingParties agreed to adopt its foreign policy positions to those of the others and refrain from impeding a consensus and joint action within a structured framework known as European Political Cooperation. Title II embodied structural changes to the treaties of and governing the European Communities and, in the case of the European Economic Community, provided for increased use of voting by qualified majority in the European Council; the enumeration of detailed objectives of the European Economic Community; and a new court of first instance inferior to the Court of Justice of the European Communities. By the European Communities (Amendment) Act, 1986, most of the provisions of the SEA, with the exception inter alia of Title III, were inserted into the European Communities Act, 1972, whereby they became part of the domestic law of the State. Section 3, sub-s. 3 of the Act of 1986 provided that the Act should come into operation on such date as the Minister for Foreign Affairs appointed, although the Act itself was enacted on the 23rd December, 1986.

    The plaintiff issued a plenary summons on the 22nd December, 1986 seeking essentially declarations that any purported ratification of the SEA would be void having regard to the provisions of the Constitution and injunctions restraining such ratification. In addition he sought a declaration that the European Communities (Amendment) Bill, 1986 (enacted the following day) would, if enacted, be repugnant to the Constitution and null and void in purporting to enact certain parts of the SEA into domestic law. Upon a hearing for interlocutory injunctions it was contended by the defendants that there was no fair question of law raised for trial on the issues and objected that the plaintiff lacked locus standi for interlocutory relief and that his application amounted to an abuse of the process of the court.

    Held by Barrington J., in granting the interlocutory injunctions, that the plaintiff had raised a fair question of law to be tried on the issues for which there were weighty and countervailing considerations justifying a departure from the received rule of practice regarding locus standi and in addition the plaintiff had standing to the extent that he claimed that the Constitution itself was being amended in the absence of the consultation by referendum with the plaintiff and the electorate specifically provided by the Constitution.
    Campus Oil Ltd. v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 and Cahill v.Sutton [1980] I.R. 269 considered.

    Upon full hearing on the substantive issues, it was

    Held by the High Court (Hamilton P., Barrington and Carroll JJ.) in refusing the reliefs sought and discharging the interlocutory injunctions, 1, that those parts of the SEA enacted into domestic law by the European Communities (Amendment) Act, 1986, were within the scope of the constitutional licence for accession to the European Communities granted by the Third Amendment to the Constitution and embodied in Article 29, s. 4, sub-s. 3 thereof.

    2. The plaintiff lacked the required locus standi to challenge the remainder of the SEA, being Title III, as it had not been incorporated into domestic law and he was unable to show any special injury or infringement of his rights.
    Cahill v. Sutton [1980] I.R. 269 applied.
    Per Curiam : That the acts of the Government are entitled to a presumption of Constitutional validity, in the same way as legislation passed by the Oireachtas.

    The plaintiff appealed to the Supreme Court from the judgment and order of the High Court and then obtained in the Supreme Court similar interim and interlocutory injunctions pending the hearing of the appeal.
    On the issue of the constitutionality of the European Communities (Amendment) Act, 1986, it was

    Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Griffin and Hederman JJ.), in refusing to declare the Act invalid having regard to the provisions of the Constitution,

    1, that the plaintiff had locus standi to challenge the Act in the particular circumstances where its coming into force would affect every citizen notwithstanding the plaintiff’s failure to prove the threat of any special injury or prejudice peculiar to him arising from the Act.
    Principles in Cahill v. Sutton [1980] I.R. 269 considered.

    2. That so much of the SEA which was to become law by the Act of 1986 was properly within the constitutional licence of Article 29, s. 4, sub-s. 3, which authorised the State’s accession to a living, dynamic Community, and the proposed changes to qualified voting in the European Council had already been anticipated in the establishing Treaties after the transitional period; the allegedly new objectives of the SEA brought into Irish law amounted to no more than a more specific enumeration of the objectives of the establishing Treaties; and the proposed new court of first instance did not in any way extend the primacy of the Court of Justice of the European Communities over the Irish courts beyond that already authorised by Article 29, s. 4, sub-s. 3 of the Constitution.

    On the issue of Title III, being the treaty whereby Ireland agreed to adopt its foreign policy positions within the framework of European Political Cooperation, not being part of the domestic law incorporated by the Act of 1986, it was

    Held by the Supreme Court (Walsh, Henchy and Hederman JJ.; Finlay C.J. and Griffin J. dissenting), in allowing the appeal and declaring the ratification of Title III unconstitutional, 1, (Finlay C.J. and Griffin J. concurring) that the Constitution vested in the Government the executive power of the State in its external relations, subject to the provisions of the Constitution, and the Government’s conduct of foreign policy was beyond the purview of the courts.
    Boland v. An Taoiseach [1974] I.R. 338 followed.

    2. That where, however, in its conduct of foreign policy the Government purported to alienate any powers of government or fetter the sovereignty of the State, then the Government acted beyond the powers entrusted by the Constitution to it, and the courts, as sole arbiters upon breaches of constitutional restraints, were obliged to restrain the Government from so acting.

    3. That since Title III of the SEA would bind the State to concede part of its sovereignty in its relations with other states and to conduct foreign policy without regard to the requirements of the common good, the ratification proposed by the Government was impermissible in the absence of authorisation by the Constitution.

    Per Finlay C.J. and Griffin J., dissenting: Title III did not oblige the State to cede any sovereignty in its foreign policy. The courts would have a right and duty to intervene only where the Government’s conduct of foreign relations constituted an actual or threatened invasion of the constitutional rights of the citizen.

    It might be noteworthy that the English courts took the view of the minority in Crotty that the SEA did not cede sovereignty on foreign policy.

    But, in any event, the principle established was perhaps more important than the actual findings on the facts.

  56. @ christy

    In short, in layman’s language, the Crotty judgement is rather dubious. If the thesis it espouses were to be carried to its logical conclusion, Ireland would have required a referendum in order to join the United Nations or any other international organisation. The essential differentiation missed by the assenting learned judges is that between (i) intergovernmental agreements and (ii) the ceding of sovereignty in the supranational context of Ireland’s membership of the European Union. The latter is a sui generis situation to which all member countries have had to adapt their constitutional arrangements in order to give primacy to legislation adopted at the level of the EU.

    That is the nub of the issue with regard to the need for a referendum in the context of any new treaty changes. As none are proposed with regard to the inter-governmental aspects (common foreign and security policy), the legal question posed is whether they can, or cannot, be considered as within the existing scope and objectives of the existing treaties? As we do not know presently what these changes are, this question cannot be answered at this point in time.

  57. You seek some concrete cites to relevant articles or protocols for the authority of the soon emerging “fiscal union”. Please understand that the fiat money system is history, it is done, through, and finished, as the banks and nation states are insolvent.

    A collapse of sovereign debt and the world’s banking system is imminent. And out of this crisis, a New Europe, whose sovereign authority comes from the 1974 Clarion Call of the Club of Rome for regional economic government, will provide degree of economic security for corporations and governments; and the people will be amazed, and place their faith and trust in the seigniorage of diktat, as foretold in bible prophecy of Revelation 13:3-4.

    The seigniorage of fiat money has ended, and the seigniorage of diktat has commenced. Not by any human action, but rather, at the appointed time, God will open the curtain, and the Sovereign, Revelation 13:5-10, and the Seignior, Revelation 13:11-18, will step onto the world’s stage to rule the Beast regime, Revelation 13:1-4, as it rises from the profligate Mediterranean Sea countries. This behemoth of regional global governance and statism has seven heads, symbolic of mankind’s seven institutions, and ten horns, symbolic of its governance in the world’s ten regions.

    Who might this Sovereign be? Herman van Rompuy is a leading candidate. And who might the Seignior be? Very possibly Mario Draghi.

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