“The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers – not the disposers of them.” Judge Hederman in 1987 in the Crotty v. An Taoiseach case which established the need for referenda inIreland where governments of the day seek to change EU treaties
Newbie in the current Dail and Donegal South West Independent TD Thomas Pringle is taking the Government to court. In March 2012, following the decision by the Government on 28th February to hold a referendum on the Fiscal Compact, Deputy Pringle wrote to the Government to set out his concerns about this State’s involvement with the so-called European Stability Mechanism.
This could all very easily get confusing but remember there are two treaties before the Irish people at present
(1) The Stability Treaty, otherwise called the Fiscal Compact or the Intergovernmental Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. This is the document on which we’re having a referendum on 31st May.
(2) The European Stability Mechanism Treaty or the ESM Treaty. This is the document which establishes the new EuroZone bailout mechanism which will have oodles of cash – about €500bn to start with – and which Ireland hopes to be able to access in 2014 if we can’t get the traditional bond markets to lend to us at reasonable rates.
Deputy Pringle is unhappy that we are having a referendum on (1) but not on (2). He points out that the €500bn funding for the ESM doesn’t magically appear from nowhere – it is provided by the members of the EuroZone and Ireland’s initial contribution is €11.145bn though the Treaty does make provision for countries in bailout programmes and not all of the cash is payable upfront. Having said that though, the ESM Treaty allows the amounts to be raised “at its sole discretion at any time in the future”, according to Deputy Pringle and given the initial contribution is almost one third of our national annual tax take, this is a matter of no small importance! And so the challenge to the Government is to force a referendum on the ESM Treaty because it is so significant and entails such a potentially colossal financial obligation for our State. The 1987 Crotty case is set to be extensively invoked as justification for the matter to go before the people – this was the court case where Raymond Crotty successfully established the principle that major changes to EU treaties required amendment of the Irish constitution, and consequently referenda.
On 9th March, Deputy Pringle’s solicitors, Cork-based Noonan Linehan Carroll Coffey wrote to An Taoiseach setting out the concerns and asking that the Government give consideration to the matter and hold separate referenda for the ESM Treaty and the amendment to article 136 of the Treaty on the Functioning of the European Union. An Taoiseach rejected the approach and on 13th April, 2012 Deputy Pringle made his application in the High Court – case reference 2012/3772 P. The Government has said that it will defend the action “vigorously” It is set to be mentioned tomorrow in the High Court where I understand Deputy Pringle will be seeking a hearing date.
If the High Court ultimately decides in Deputy Pringle’s favour, we may need to have at least one more referendum this year. Of course if President Elect of France, Francois Hollande has his way, then the Fiscal Compact itself may be renegotiated and then the wording of the amendment to our Constitution in the 31st May referendum – the treaty “done” in Brussels in March 2012 – would be obsolete and then we might need a third referendum. All in all, we look set to have a booming referendum business here over the next 12 months!
You can keep abreast of the progress of Deputy Pringle’s case on his website here. There is a blogpost on here examining the financial obligations imposed on Ireland in the ESM Treaty – there’s also a nice piccy of Minister Noonan signing the Treaty last summer, though the Treaty was altered at the start of this year to make access to the ESM conditional on signing up to the Fiscal Compact.
UPDATE: 17th May, 2012. The case was mentioned at the High Court yesterday. The Irish Times reports “ Mr Justice Roderick Murphy yesterday gave lawyers for Mr Pringle permission to serve short notice on the Government of their intention to seek an expedited hearing. The application was made with only one side represented and the judge made it returnable to next week.”