A German Army Leopard-2 tank, deployed by the NATO Enhanced Forward Presence Battle Group in Lithuania earlier this month. Alamy

Explainer: Would Ireland be required to have a referendum before joining Nato?

The Taoiseach has said a referendum wouldn’t be required – constitutional law experts disagree.

THE INVASION OF Ukraine by Russia and subsequent calls for international leaders to step in and assist has sparked a now months-long debate about Ireland’s neutrality.

The country’s top politicians have repeatedly stated that while Ireland is not ‘politically neutral’ in relation to the war in Ukraine, it remains militarily neutral. And they have stated there is no intention to seek membership of the Nato military alliance. 

However yesterday the Taoiseach caused a stir among constitutional law experts when he stated that the government, if it did decide joining Nato was in the country’s best interests, would not have to put the issue to a vote in a referendum. 

Speaking to reporters in Strasbourg, Micheál Martin said Ireland would need a referendum to join a European Union defence pact if one was declared because there are provisions in the Constitution that would demand it.

However he said: “We don’t need a referendum to join Nato. That’s a policy decision of government.”

A number of constitutional law experts have weighed in, stating that one particular Supreme Court ruling makes it clear the government would need to have a referendum unless it wanted to face court challenges. Here’s what they told The Journal:

First of all, what is Nato?

Nato is a defence alliance, with a primary goal to defend its member states. It has both political and military infrastructures in place to help it implement that. 

The legal treaty on which Nato is based is the North Atlantic Treaty of 1949. Article 5 of this treaty states that if one Nato member state is attacked, all Nato member states will provide assistance and come to their defence.

Why would Ireland’s membership of Nato need to go to a referendum?

Dr David Kenny, associate professor at the Trinity College School of Law, said the law on this point “is fairly clear”. 

“The courts haven’t ruled directly on this point but based on the current case law we have it would be a significant departure from one of the most significant Supreme Court judgements in Irish constitutional law to join Nato without a referendum,” he told The Journal.

He cited a 1987 Supreme Court case, Crotty v an Taoiseach, which centred on the government’s attempt to ratify the Single European Act with an ordinary act of parliament. 

“There was a possibility of joint foreign policy efforts under amendments to EU treaties. The courts said that in potentially giving up sovereignty over foreign policy decision-making the government had crossed a constitutional line,” he explained.

The court in that particular case said the State could not sign up to an arrangement that could result in a loss of its power to say ‘no’ – a power of veto essentially – to these kinds of policies. 

“Then it comes down to what exactly it means to sign up to Nato,” Kenny said. “I am not an expert in Nato, but my understanding from reading around it suggested to me that at the heart of Nato is a series of defence commitments that do require collective action without individual states consenting to those actions.”

Could the Taoiseach be right?

Constitutional law is by no means cut-and-dried, Dr Eoin Daly, lecturer in the School of Law at NUI Galway told The Journal, and there was a case after the Crotty ruling that may have muddied the waters. 

That case was taken by independent TD Thomas Pringle against the Irish government in 2012 and related to the European Stability Mechanism. Although this mechamism was about financial expenditure on a European level and not about foreign policy, it is still relevant in the debate.

Dr Daly said now Chief Justice Donal O’Donnell, who was on the Supreme Court panel, “pulled back and tried to temper what the earlier judges had said in Crotty”.

“In Crotty, they said the State could be forced into a position against its will by the votes of other states and was giving away its right to formulate foreign policy,” he explained.

“Justice O’Donnell said they didn’t really mean it like that, in that absolute black-and-white way, they meant it in the context of that particular treaty. 

He said it was not practical to say that a State couldn’t be involved in international bodies where they might be outvoted – that has to happen – but it did mean that the State can’t put itself into a position where it was subordinating itself to others. So his view was that it was more about avoiding subordination than losing the right to say ‘no’ over something that may be mundane.

Daly said Justice O’Donnell in his opinion also specifically mentioned military alliances and entering into arrangements to pool powers with others. 

“That would seem to allude to something like Nato membership,” he said. But that is an obiter dictum – a by-the-way remark that doesn’t set a precedent and is not salient to the case.”

Although this remark did not set a precedent, it potentially does give an indication of one Supreme Court judge’s view on the matter if the government was brought to court over a Nato membership move in the future.

“We tend to talk about these things as if there is a right or wrong answer but it depends on what a court decides, it comes down to a majority. It’s possible to argue a case both ways,” he said.

Dr Daly said he was “surprised” at the Taoiseach’s remarks because the government has, in the past, taken a more cautious approach to these types of issues. 

“Whatever about the legal niceties of it, I have a feeling it wouldn’t be politically popular to effect huge historical change without a referendum, there’s an expectation that the public will get a say on something as important as that.”

The Journal asked the Taoiseach’s office for further clarification on his comments – and the legal basis of his view – but did not receive a response by time of publication.

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