Referendum on Fiscal Treaty confirmed

Scofflaw

later12 wrote: »

Indeed. I meant unconditionally once the EU member states (excluding Ireland, in this example) deliberate and agree on the EU commission's proposed course of action.

That is the sense in which I refer to a ceding of control to the EU. I'm not happy with the role played by the Commission, but I'm not necessarily opposed to this specific provision either. I think an alternative would be open to abuse by larger states. I'm just pointing it out. I think people have the right to expect an honest description of the Treaty on both sides.

Sure - I agree that that's an accurate representation of what's in there, although I also think you have to be careful about the phrasing, because "ceding economic control to Brussels" as a summary of it isn't accurate.

I wonder if the Commission is particularly happy with the role being thrust upon them either...still, they're the closest thing Europe has to a neutral body, and I suspect (but obviously it's only my opinion) that in the event the Commission will consult fairly extensively with the affected Member State before issuing its recommendation.

cordially,
Scofflaw

later12

Scofflaw wrote: »

Sure - I agree that that's an accurate representation of what's in there, although I also think you have to be careful about the phrasing, because "ceding economic control to Brussels" as a summary of it isn't accurate.

Well I referred to "ceding some control to the EU in the event of breaching the debt ceiling" which I think is an accurate description of Article 7 of the Treaty.

FreudianSlippers

...if you break the rules, and I believe we don't want to be in that situation again. We are not giving up powers unless something happens. It's conditional.

I think it's only fair that if we start fücking up again that there are consequences. It isn't much of an ask to say that we consider proposals from the commssion if we pass the deficit marker again.

It's pure sensationalism to say that the treaty is giving up power to Brussels

later12

FreudianSlippers wrote: »

It's conditional.

It is. I'm not challenging that. I'm challenging your suggestion that "the EU... get no control over our country and budgets", because that situation can arise to the extent outlined.

I think it's only fair that if we start fücking up again that there are consequences.

I think so too. However it must be said that a structural deficit of >0.5% of GDP (in effect, not running a surplus) is hardly "f*cking up". Behold the image below which I pilfered from the Financial Times.



Here we can see that Spain had a strong structural surplus in 2007. Ireland was structurally balanced. Well done Spain and Ireland! Fiscal sustainability is all yours!

Again, I'm not disagreeing with an economy like ours aim to become structurally balanced or in a small surplus. However, we must remember that the indicators we use to assess this are variable on both sides. This is the same reason why people get so frustrated at the "balance the books tonight" crowd. Being in structural balance does not mean you have avoided f*cking up because it is an entirely simplistic indicator that does not even consider sustainable practice and does not guarantee that you will be solvent this time next year.

It isn't much of an ask to say that we consider proposals from the commssion if we pass the deficit marker again.

We're not being "asked to consider" them. if we go over this 0.5% ceiling, ratifying the Treaty means we commit to the proposals brought by the European Commission and agreed in a conversation between the European Commission and the EU27-1 member states excluding Ireland (in this example).

Sand

Later12 is right - if the fiscal treaty had already been in place in 2007, to have any effect its analysis should have had red lights flashing across the board. Instead, it would have reported "Everything is fine. No need to worry". Both Spain and Ireland would have been given a clean bill of health. France would have been considered to have been in more trouble than Portugal.

Thats how bad this treaty is. There is *zero* reason to pass this treaty. Not only will it not help prevent future problems, it cannot even prevent the crisis that has just occured. There is a worse prospect than no controls or limitations on our politicians - *bad* controls and limitations, which weaken the case for seeking *good* controls and limitations.

This treaty is simply a dumb, blinkered "answer" the Germans came up with to a question nobody asked. The ECB is obsessed with forcing the Germans into a transfer union, and the Germans are equally obsessed with avoiding a transfer union. Whilst these two slug it out, the weak suffer what they must.

Its worth noting, given the nod and wink assumptions that if we just pass this treaty then the Germans will remember how much they love us and will bail us all out that a similar logic was applied to the question of if we should do everything the ECB demanded. We were informed: "Do whatever the ECB say! They're just faking being stupid, crazed morons. Theyll save the day if we agree to all their bad deals and demands without questions".

However, its apparently news (not news to me) that the ECB are resisting any sort of moderation of the repayment of the promissory notes. Its worth remembering that the government has stupidly taken it as some point of pride to refuse to ask for any sort of debt writedown. Instead, theyve nailed their colours to the mast of promissory note restructuring. Because the ECB are our mates - right?

Good loser

washman3 wrote: »

Funny to see the vasted interests crawl out of the woodwork.:)

In the same way as our deficit is being financed at the moment.!!
It's not, its actually being increased by the minute. the "tranches" of bailout funds forwarded to us now by the troika are loans in case you've forget, loans that must be repaid at a penal rate.
our deficit will only be reduced when we get a total write-off of bank debt from Europe. then we can tackle the sovereign debt,which over time can be handled.
Think Eamon O'Cuiv has put many of your theories to bed.:D
(was never a fan of his but admire him today)

Nothing like the penal rate the Irish Govt is charging Irish banks for its guarantee.

Good loser

Sand wrote: »

Later12 is right - if the fiscal treaty had already been in place in 2007, to have any effect its analysis should have had red lights flashing across the board. Instead, it would have reported "Everything is fine. No need to worry". Both Spain and Ireland would have been given a clean bill of health. France would have been considered to have been in more trouble than Portugal.

Thats how bad this treaty is. There is *zero* reason to pass this treaty. Not only will it not help prevent future problems, it cannot even prevent the crisis that has just occured. There is a worse prospect than no controls or limitations on our politicians - *bad* controls and limitations, which weaken the case for seeking *good* controls and limitations.

This treaty is simply a dumb, blinkered "answer" the Germans came up with to a question nobody asked. The ECB is obsessed with forcing the Germans into a transfer union, and the Germans are equally obsessed with avoiding a transfer union. Whilst these two slug it out, the weak suffer what they must.

Its worth noting, given the nod and wink assumptions that if we just pass this treaty then the Germans will remember how much they love us and will bail us all out that a similar logic was applied to the question of if we should do everything the ECB demanded. We were informed: "Do whatever the ECB say! They're just faking being stupid, crazed morons. Theyll save the day if we agree to all their bad deals and demands without questions".

However, its apparently news (not news to me) that the ECB are resisting any sort of moderation of the repayment of the promissory notes. Its worth remembering that the government has stupidly taken it as some point of pride to refuse to ask for any sort of debt writedown. Instead, theyve nailed their colours to the mast of promissory note restructuring. Because the ECB are our mates - right?

There's stupid and stupid.

You don't seem to appreciate that our dealings with the EU/ECB/Germans etc is a power play situation.

We are in a weak state (like every impecunious borrower) and must be careful and nimble to garner what advantages we can from the strong given a disastrous opening position.

We may not get far in any event.

To talk of 'demands' in these circumstances is crude and 'stupid'.

Alone €1 bn is an awful lot of money; yet some speak blithely of others writing off (for us) €30bn, €47bn and even €75bn.

Get a grip!

southsiderosie

MOD NOTE:

Can everyone take a deep breath and tone it down a bit? Posting on this thread is getting overly hostile.

Sand

Good loser wrote: »

There's stupid and stupid.

You don't seem to appreciate that our dealings with the EU/ECB/Germans etc is a power play situation.

We are in a weak state (like every impecunious borrower) and must be careful and nimble to garner what advantages we can from the strong given a disastrous opening position.

We may not get far in any event.

To talk of 'demands' in these circumstances is crude and 'stupid'.

Alone €1 bn is an awful lot of money; yet some speak blithely of others writing off (for us) €30bn, €47bn and even €75bn.

Get a grip!

Couple of things - I've not spoken of any demands. I've just noted that we are being asked to consider a treaty, which is stupid and badly composed.

We ought to reject it on its merits. No one is able to present any coherent reason for why the Treaty is in anyway beneficial. Rejecting it is not a demand...its a judgement.

And, I completely and totally understand we are in a powerplay situation. I have always understood our position in those terms. If we are in a bad position as an impecunious borrower, then Germany is equally in a bad position as being a lender to impecunious borrowers - IOUs are marked to market after all...

Others have pretended we are in some form of friendship or partnership with the ECB and the Germans. We are not. I get that. Some Irish policymakers seem to think the appropriate response to a power play situation is to find the nearest German to surrender to. The moderates seem to think that *not* finding the nearest German to surrender to means invading Germany to spit in the face of Frau Merkel herself...apparently theres no inbetween - either we surrender unconditionally and without question, or its war.

But, being the realpolitick cynic you are...why exactly should the Irish people pass a dumb treaty of little value and much harm which has no effect whatsoever on Irelands existing bailout? Sheer hope and blind optimism that Germany will suddenly do a 180 and start throwing the cash about?

Sorry, whose the realpolitick cynic here again?

Scofflaw

Good loser wrote: »

washman3 wrote:

It's not, its actually being increased by the minute. the "tranches" of bailout funds forwarded to us now by the troika are loans in case you've forget, loans that must be repaid at a penal rate.

Nothing like the penal rate the Irish Govt is charging Irish banks for its guarantee.

Indeed - nothing like: http://debates.oireachtas.ie/dail/2011/11/17/00058.asp

ESM rate: 2.97%
EFSF rate: 3.06%
UK rate: 4.83%
IMF rate: 4.79%

Overall rate: 3.55%

Not everyone has kept up with the fact that the rates have been reduced - to below anything we've ever achieved on the open market for similar maturities.

cordially,
Scofflaw

K-9

Scofflaw wrote: »

Indeed - nothing like: http://debates.oireachtas.ie/dail/2011/11/17/00058.asp

ESM rate: 2.97%
EFSF rate: 3.06%
UK rate: 4.83%
IMF rate: 4.79%

Overall rate: 3.55%

Not everyone has kept up with the fact that the rates have been reduced - to below anything we've ever achieved on the open market for similar maturities.

cordially,
Scofflaw

I thought it was 3.5%, down from 6.5%, could well have been the overall rate reduced to 3.5. Never knew the EU money was about 3%.

I've pointed out the lower rate a few times, nobody seems bothered! Suppose nobody can get indignant about it and nobody is interested in good news stories, reminds me of the bubble and bad news in reverse.

FreudianSlippers

Sand wrote: »

Couple of things - I've not spoken of any demands. I've just noted that we are being asked to consider a treaty, which is stupid and badly composed.

We ought to reject it on its merits. No one is able to present any coherent reason for why the Treaty is in anyway beneficial. Rejecting it is not a demand...its a judgement.

Unless you know what the referendum will say, this seems to rely on a fundamentally flawed assumption that we are voting on whether or not to ratify the treaty as a whole.

We only need to vote on the aspects of the treaty which amend the constitution via the 30th Amendment Bill/Act; theoretically we could still ratify the treaty through alternative measures. See the wording of the treaty, specifically:

[...] through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to [...]

Granted, there are provisions to allow for an Ordinary Referendum whereby bills are put to the people that are not constitutionally related but it has never happened and I doubt it will in my lifetime. Only constitutional amendments are put via referendum to the people in our history thus far.

Scofflaw

FreudianSlippers wrote: »

Unless you know what the referendum will say, this seems to rely on a fundamentally flawed assumption that we are voting on whether or not to ratify the treaty as a whole.

We only need to vote on the aspects of the treaty which amend the constitution via the 30th Amendment Bill/Act; theoretically we could still ratify the treaty through alternative measures. See the wording of the treaty, specifically:



Granted, there are provisions to allow for an Ordinary Referendum whereby bills are put to the people that are not constitutionally related but it has never happened and I doubt it will in my lifetime. Only constitutional amendments are put via referendum to the people in our history thus far.

As far as I know, that wouldn't work, because the reason for the referendum is not the phrase you highlight - that might actually be the subject of another referendum.

The reasoning behind the referendum, from what little of the AG's opinion that's been made available, is that the budgetary rules are limitations on sovereignty (sovereignty is the free exercise of governmental powers). While we have, of course, agreed to similar rules at Maastricht, which remain binding even if we reject this treaty, we agreed them as part of the EU - this, on the other hand, is not an agreement as part of the EU, but a separate side-agreement, and the limits in it can therefore be characterised as a new limitation on sovereignty despite being almost identical to existing limits.

cordially,
Scofflaw

FreudianSlippers

Scofflaw wrote: »

As far as I know, that wouldn't work, because the reason for the referendum is not the phrase you highlight - that might actually be the subject of another referendum.

The reasoning behind the referendum, from what little of the AG's opinion that's been made available, is that the budgetary rules are limitations on sovereignty (sovereignty is the free exercise of governmental powers). While we have, of course, agreed to similar rules at Maastricht, which remain binding even if we reject this treaty, we agreed them as part of the EU - this, on the other hand, is not an agreement as part of the EU, but a separate side-agreement, and the limits in it can therefore be characterised as a new limitation on sovereignty despite being almost identical to existing limits.

cordially,
Scofflaw

That would mean two things:

1) This isn't a referendum on the Fiscal Compact (per se)
2) The proposed constitutional amendment is not about actually ratifying the treaty, rather laying the groundwork constitutionally for ratification of the treaty.

We don't necessarily need a referendum to place limitations on sovereignty outside of what we have already agreed to (as you pointed out as a part of the EU), so it would follow that there must be another constitutional issue that hasn't been considered by anyone but our new AG?

AFAIK this cannot be and isn't an "Ordinary Referendum"; it is being pitched as the 30th Amendment to the Constitution.

Scofflaw

FreudianSlippers wrote: »

That would mean two things:

1) This isn't a referendum on the Fiscal Compact (per se)
2) The proposed constitutional amendment is not about actually ratifying the treaty, rather laying the groundwork constitutionally for ratification of the treaty.

We don't necessarily need a referendum to place limitations on sovereignty outside of what we have already agreed to (as you pointed out as a part of the EU), so it would follow that there must be another constitutional issue that hasn't been considered by anyone but our new AG?

Well, no, it is about the budget limitations. Even though we've agreed them in an EU context, the fact that we're agreeing them in a different context means they require a referendum just as much as they would had we never agreed those same limits with the EU.

That is, the constitutional amendment that allowed us to ratify such limits before - as an EU treaty - does not apply here, and does not cover the same limitations agreed as an intergovernmental treaty. The amendments in place for EU treaties only allow for the ratification of the named treaties - they are not a general carte blanche for the government to accept budget limits.

To put it another way, were we to agree a treaty with France that in some way limited our sovereignty, that would clearly require a referendum. If we then agreed the same set of limits with Germany, that would require a second referendum, because a sovereignty-limiting agreement with France doesn't apply to a sovereignty-limiting agreement with any other country, even where the same limits are being agreed.

cordially,
Scofflaw

FreudianSlippers

Scofflaw wrote: »

FreudianSlippers wrote: »

That would mean two things:

1) This isn't a referendum on the Fiscal Compact (per se)
2) The proposed constitutional amendment is not about actually ratifying the treaty, rather laying the groundwork constitutionally for ratification of the treaty.

We don't necessarily need a referendum to place limitations on sovereignty outside of what we have already agreed to (as you pointed out as a part of the EU), so it would follow that there must be another constitutional issue that hasn't been considered by anyone but our new AG?

Well, no, it is about the budget limitations. Even though we've agreed them in an EU context, the fact that we're agreeing them in a different context means they require a referendum just as much as they would had we never agreed those same limits with the EU.

That is, the constitutional amendment that allowed us to ratify such limits before - as an EU treaty - does not apply here, and does not cover the same limitations agreed as an intergovernmental treaty. The amendments in place for EU treaties only allow for the ratification of the named treaties - they are not a general carte blanche for the government to accept budget limits.

To put it another way, were we to agree a treaty with France that in some way limited our sovereignty, that would clearly require a referendum. If we then agreed the same set of limits with Germany, that would require a second referendum, because a sovereignty-limiting agreement with France doesn't apply to a sovereignty-limiting agreement with any other country, even where the same limits are being agreed.

cordially,
Scofflaw

That is questionable. It fully depends on the wording of the amendment. I accept what you're saying, but constitutionally it isn't necessarily accurate; that is we do not require amendments for all sovereignty limiting treaties in the same manner that we do not need them for sovereignty extending mechanisms. Once we have set the constitution so that legislation we implement within the bounds of that treaty is in compliance with our constitution then theoretically our government can sign any treaty or pass any legislation.

The constitution is between the sovereign and the state. We do not need amendments to allow the government to sign treaties, we need amendments to implement the legislation that will come from those treaties into our law, or, as the case seems to be for the fiscal compact, to amend the constitution to add balanced budgets and deficit rules.

I'd imagine these will be all clumped in together, there's no way the government could pull off another referendum in a few months after this.


I accept, it would appear that we have had amendments to ratify named treaties, but that simply creates a constitutional loophole whereby it is stated that the contents of that treaty are not unconstitutional. It's a quick fix of sorts, which I doubt would be so easy in this case. It's hard to say without seeing the bill, but there is a reason the AG wanted a referendum and I think this will be more meaty than you think

Scofflaw

FreudianSlippers wrote: »

That is questionable. It fully depends on the wording of the amendment. I accept what you're saying, but constitutionally it isn't necessarily accurate; that is we do not require amendments for all sovereignty limiting treaties in the same manner that we do not need them for sovereignty extending mechanisms. Once we have set the constitution so that legislation we implement within the bounds of that treaty is in compliance with our constitution then theoretically our government can sign any treaty or pass any legislation.

The constitution is between the sovereign and the state. We do not need amendments to allow the government to sign treaties, we need amendments to implement the legislation that will come from those treaties into our law, or, as the case seems to be for the fiscal compact, to amend the constitution to add balanced budgets and deficit rules.

I'd imagine these will be all clumped in together, there's no way the government could pull off another referendum in a few months after this.


I accept, it would appear that we have had amendments to ratify named treaties, but that simply creates a constitutional loophole whereby it is stated that the contents of that treaty are not unconstitutional. It's a quick fix of sorts, which I doubt would be so easy in this case. It's hard to say without seeing the bill, but there is a reason the AG wanted a referendum and I think this will be more meaty than you think

I have to say that some of that at least goes entirely against my (reasonably battle-tested) understanding of Crotty and the reason for EU referendums, as well as my understanding of the particular features of this case. I also haven't (or certainly haven't intended to) claim that all that will be in the amendment is a ratification provision. What I do claim is that your statement that "we do not require amendments for all sovereignty limiting treaties" is incorrect.

Crotty specifically hinges on the fact that sovereignty - that is, the free exercise of the powers of self-government - is exercised by the government on behalf of the people, from whom it derives. The government therefore cannot agree to limitations on the exercise of those powers without the consent of the people, because the power to act freely is not the government's to dispose of. Thus, in the case of the SEA in Crotty, the specific limitation involved was that under the Treaty the government agreed to consider the interests of other Member States in the conduct of its foreign policy. That is clearly a limitation on the free exercise of a self-determined foreign policy by the government, one of the powers exercised by the government on behalf of the people - hence the requirement for a referendum. I'm relying in particular on J. Walsh's summary here:

62. In enacting the Constitution the people conferred full freedom of action upon the Government to decide matters of foreign policy and to act as it thinks fit on any particular issue so far as policy is concerned and as, in the opinion of the Government, the occasion requires. In my view, this freedom does not carry with it the power to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way or to refrain from exercising it save by particular procedures, and so to bind the State in its freedom of action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of sovereignty as the freedom to form economic policy and the freedom to legislate. The latter two have now been curtailed by the consent of the people to the amendment of the Constitution which is contained in Article 29, s. 4, sub-s. 3 of the Constitution. If it is now 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. To acquire the power to do so would, in my opinion, require a recourse to the people "whose right it is" in the words of Article 6 "...in final appeal, to decide all questions of national policy, according to the requirements of the common good." In the last analysis it is the people themselves who are the guardians of the Constitution. In my view, the assent of the people is a necessary prerequisite to the ratification of so much of the Single European Act as consists of title III thereof. On these grounds I would allow this appeal.

In addition, that specific issue in Crotty also makes it clear that it's not, as you say, just a question of protecting legislation, because there is no legislation that specifically implements that provision of the SEA.

On the contrary, the clause that makes legislation derived from the EU treaties acceptable constitutionally is the blanket provision in 29.4.10:

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.

Coming back to the Fiscal Treaty - if it were an EU Treaty, any legislation required to enact the agreed budgetary constraints would be constitutionally acceptable as soon as a provision had been added to the Constitution stating that the government could ratify the Treaty, because it would then be an obligation of membership of the EU. Unless the government chose to add a specific provision to the Constitution enshrining the budgetary constraints or the legislation implementing them (in order to comply with the Treaty obligations), nothing more than a ratification provision would be required.

So much for where I disagree with your interpretation in respect of existing and EU treaties. And, clearly, 29.4.10 protects any legislation implementing the budgetary constraints we agreed to in Maastricht, because those are obligations of EU membership.

In this case, however, the blanket provision of 29.4.10 clearly doesn't cover the Treaty, because it's not an EU treaty, which means that a simple ratification clause will not constitutionally protect any legislation implementing the budgetary constraints. So I agree that the amendment will need to be a bit more complex than that, because clearly legislation implementing budgetary constraints could, as far as I can see, be held to be unconstitutional in and of itself - that is, the fact that it relates to a treaty is irrelevant. In effect, the amendment will need to combine a standard ratification clause with an equivalent of 29.4.10.

It's possible, of course, that the government will, as you say, "amend the constitution to add balanced budgets and deficit rules", but I strongly doubt it. I would expect them to argue that so long as the legislation implementing the budgetary constraints is constitutionally protected - or even given a special status - that fulfills the requirement of the Treaty for "binding and permanent provisions, preferably constitutional". So it's possible that we'll see the proposed Fiscal Responsibility Bill given a special status either directly or, more likely given the stage of the legislation in question, indirectly.

In summary, then, I agree with your conclusion about the likely nature of the amendment - that it will have to "clear the ground" for implementing legislation - but not with your background reasoning on how EU treaties are constitutionally protected.

All of which obviously comes with the caveat that I'm not the AG!

cordially,
Scofflaw

FreudianSlippers

The problem with relying on Crotty is that it is bad law. Well, the right decision reached for the wrong reasons. A much more useful and modern position is seen in McGimpsey v. Ireland [1990] IESC 3.

It has long been the concept that the majority (slight) ruling on Crotty meant that all of these treaties no matter how minor should be put to the people as they involved individual Constitutional changes. However, and you are correct, that this is only really necessary where we give up sovereignty. However, I would argue that it has to be read in light with the precise wording of 29.4.10.

Perhaps I'm slightly confused though, because my understanding is that the Fiscal Compact Treaty is an EU treaty; therefore it falls under 29.4.10 - this is a measure which is necessitated by the obligations of membership of the EU.

Clearly, where we amend the constitution to add things we need a referendum, but part of this treaty is merely adopting and ratifying the treaty. Again my point there being that Crotty isn't fantastic law on this any more.

Scofflaw

FreudianSlippers wrote: »

The problem with relying on Crotty is that it is bad law. Well, the right decision reached for the wrong reasons. A much more useful and modern position is seen in McGimpsey v. Ireland [1990] IESC 3.

It has long been the concept that the majority (slight) ruling on Crotty meant that all of these treaties no matter how minor should be put to the people as they involved individual Constitutional changes. However, and you are correct, that this is only really necessary where we give up sovereignty. However, I would argue that it has to be read in light with the precise wording of 29.4.10.

Perhaps I'm slightly confused though, because my understanding is that the Fiscal Compact Treaty is an EU treaty; therefore it falls under 29.4.10 - this is a measure which is necessitated by the obligations of membership of the EU.

No, the Treaty is an intergovernmental treaty, not an EU one, because the UK and the Czech Republic wouldn't sign up to it. An EU treaty requires all Member States to agree it.

Nor is any treaty "necessitated by the obligations of membership of the EU", as far as I'm aware - a treaty is freely entered into, not an obligation, otherwise we would have required no referendums after 29.4.10 was entered into the Constitution.

FreudianSlippers wrote: »

Clearly, where we amend the constitution to add things we need a referendum, but part of this treaty is merely adopting and ratifying the treaty. Again my point there being that Crotty isn't fantastic law on this any more.

On the other hand, it remains the precedent, and I don't think McGimpsey overturns it. On the contrary, it acknowledges Crotty as a precedent, and states that the case in McGimpsey is not analogous:

2. Fettering of the power of Government to conduct external relations in breach of Article 29 of the Constitution

33. The submission made on this issue was that the terms of the Anglo-Irish Agreement were of similar character to the terms of the Single European Act which the decision of this Court in Crotty v. An Taoiseach [1987] I.R. 713 held to be inconsistent with the provisions of Article 29 of the Constitution.

34. I am satisfied that this analogy is quite false. The Anglo-Irish Agreement is an agreement reached between two governments, both of whom have an acknowledged concern in relation to the affairs of Northern Ireland. It acknowledges that the Government of Ireland may make representations, put forward proposals, and try to influence the evolution of peace and order in Northern Ireland.

35. The frameworks contained in the Agreement and structures created by it provide methods of carrying out these activities, it can be argued, in the manner most likely to make them effective and acceptable, namely, constant mutual discussion. The Government of Ireland at any time carrying out the functions which have been agreed under the Anglo-Irish Agreement is entirely free to do so in the manner in which it, and it alone, thinks most conducive to the achieving of the aims to which it is committed. A procedure which is likely to lead to peaceable and friendly co-operation at any given time must surely be consistent with the constitutional position of a state that affirms its devotion not only to the ideal of peace and friendly co-operation but to that ideal founded on international justice and morality.

36. The basis of the decision of this Court in Crotty v. An Taoiseach [1987] I.R. 713 was that the terms of the Single European Act could oblige the Government in carrying out the foreign policy of the State to make the national interests of the State, to a greater or lesser extent, subservient to the national interests of other member states. I have no doubt that there is a vast and determining difference between the provisions of this Agreement and the provisions of the Single European Act as interpreted by this Court in Crotty v. An Taoiseach

cordially,
Scofflaw

FreudianSlippers

I don't think the law is settled in that exemptions from treaties make them non-EU treaties. I also accept crotty is still precedent, my point is that there had been a pull back from this hard line position more towards the dissenting opinion in Crotty which I would tend to agree with.

I'm not sure that if this were to come up in te SC tomorrow you'd see a mirror of Crotty. It would likely be much more in line with the dissenting views. (well I'm not overly familiar with our 2 new SC judges so idk there fully)

It's really impossible to say without seeing the referendum, but I do believe that it is not out of question that we do not necessarily need a referendum on this treaty regardless of sovereignty issues unless three is constitutional amendment.

I fully accept your points as good and correct, but the modern jurisprudence and jurisprudential thinking (as well as academic thinking) is veering away from Crotty.

K-9

gerogerigegege wrote: »

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FreudianSlippers

Interesting - I didn't see this before now, but Professor Sandeep Gopalan from NUI Maynooth made the same point I made above in December last.

Link

[...] Still, even with this decision [Crotty v An Taoiseach], 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. [...]