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Column: Referendum or no, the fiscal treaty should go to the Supreme Court

This treaty will solidify EU control over Ireland, while most of our politicians are effectively silenced. We need a proper legal hearing, writes Dr John O’Brennan.

John O'Brennan

NOW THAT THE government has responded to Attorney General Máire Whelan’s report on the EU Fiscal Treaty by taking the decision to hold a referendum, the early skirmishing has revolved around the attempts by the left opposition to brand the treaty the ‘EU austerity treaty’.

Meanwhile, Taoiseach Enda Kenny and Minister for European Affairs Lucinda Creighton have said that support for the treaty is crucial to keeping Ireland within both the eurozone and the European Union.

Against this backdrop of a rather predictable political face-off, it is noteworthy that the missing link in the decision to hold a referendum is the Supreme Court – which has been singularly absent from Ireland’s engagement with the EU for most of the last quarter century. Unlike many member states of the EU, we have had no national judicial consideration of the relationship between national sovereignty and EU supranationalism. And in the light of the potentially far reaching consequences of ratifying the Fiscal Treaty, this is an intervention that was badly needed.

The European integration process has presented the most formidable challenge to the constitutional ordering of the domestic political architecture: vectors of so-called ‘Europeanisation’ have helped to re-configure the Irish political landscape in quite specific ways, and, as the ‘European’ layer of governance in Ireland has effectively overlaid the ‘domestic’, the practical institutional effect has been to contribute to a hollowing-out of the constitutionally prescribed functions of the Oireachtas.

Because over time more and more policy areas have ‘migrated’ from the national to the European or supranational level, the decision-making input and authority of purely domestic actors has been continually eroded. If the Irish people say ‘yes’ to the Fiscal Treaty, that pattern is likely to continue and may even accelerate

‘The fiscal treaty would mean a permanent oversight of Irish fiscal policy by EU authorities’

It is ironic that the absence of the Supreme Court from Ireland’s European journey stems largely from one of its own judgments, the celebrated Crotty case of 1987. The most important effect of the judgment was that, subsequent to its delivery, Irish governments interpreted the Court’s position to mean that all future changes to EU treaties had to be decided by popular referendum. The Supreme Court has had virtually nothing to say about the cumulative transfers of sovereignty to Brussels and the trajectory of ever deeper integration pursued by the EU via the treaties of Maastricht, Amsterdam, Nice and Lisbon.

There were two reasons in particular to support a referral of the fiscal treaty to the Supreme Court.

The first is the nature of the fiscal treaty itself and the fundamental change it portends in the management of the Irish economy. The fiscal treaty does not merely constitute an organic or benign evolutionary development in Ireland’s economic relationship with Brussels. If passed into law it would provide for a permanent and deeply penetrative oversight of Irish fiscal policy by EU authorities, embedding this external economic control in domestic legislation and specifying automatic sanctions for transgression which could condemn this country to lengthy periods of economic stagnation.

The fiscal compact is the latest (and may yet prove the most significant) in a series of EU supranational economic bargains that can only be understood as a form of advanced ‘Europeanisation’ of the domestic legislative landscape. A Supreme Court judgment on the fiscal compact would have thrown light on these evolving fiscal arrangements and determined whether they were compatible with the principles of sovereignty enshrined in Bunreacht na hÉireann.

‘There is an overwhelming imbalance in power between the government and the Oireachtas.’

As importantly, a Supreme Court hearing might also have helped define the parameters and deeper long-term significance of Ireland’s constitutional relationship with the EU. In particular the Court might have clarified the responsibilities of and relative balance of power between our domestic political institutions with regard to European affairs. This is especially crucial because of the current overwhelming imbalance in power between the government and the Oireachtas.

Here we should take note of the practice in other jurisdictions where both the courts and national parliaments play a much more prominent part in EU decision-making. The Danish government is constitutionally obliged to take instruction from the European affairs committee of its national parliament, the Folketinget, when it negotiates with EU partners. Thus Danish MPs have an input into EU policy – which their Irish counterparts in the Oireachtas can only dream about.

The balance of power between the institutions of state is also much more nuanced in Germany, where the Constitutional Court has been a visible and increasingly assertive actor within the domestic processing of EU affairs.

Most recently, in September 2011, the Court ruled on three lawsuits brought by prominent lawyers and economists against Germany’s participation in the EU bailout of Greece. Although the court rejected the substantive claim of the litigants, it also handed them a partial victory by insisting that the Bundestag be given a greater role in any future bailouts and – more generally – in German decision-making on EU issues.

The German case demonstrates a clear attempt to claw back power from the EU to the national level of decision-making, and also highlights the extent to which national parliaments have become ‘victims’ of the European integration process. Within individual member states this has manifested itself in the control of EU policy-making by a narrow stratum of executive and bureaucratic actors and the marginalisation of national parliaments as arenas of oversight and scrutiny of governmental activity at EU level.

‘There has been little or no room for the Oireachtas to assert itself’

In Ireland it is clear that the Oireachtas is failing miserably in its duty of control over the executive. Professor Michael Gallagher has noted that with regard to the Dáil that it is only a slight exaggeration “to say that all legislation passed by the Dáil emanates from the government, and that all legislation proposed by the government is passed by the Dáil.” Dáil debates are widely viewed as “dialogues of the deaf” with little incentive for opposition parties to engage constructively and the “Dáil cannot be seen as an active participant in the process of making laws, let alone broader policy”.

Ireland’s membership of the EU has re-enforced existing tendencies toward governmental control and EU policy-making in particular has been overseen by a combination of the departments of Foreign Affairs, Finance and An Taoiseach, assisted by a highly effective civil service. There has been little or no room for the Oireachtas to assert itself, whether in the early stages of policy initiation or the later stages of implementation. This is no small matter of concern as we set out on a fifth EU referendum campaign in just over a decade and one that will unfold against a backdrop of unprecedented economic uncertainty.

So a Supreme Court hearing, brought under Article 26 of the Constitution, would have promised to bring much-needed clarity to the debate on how to ratify the Fiscal Treaty.

In doing so the Court would also have had the first opportunity in almost quarter of a century to consider the compatibility of Ireland’s EU commitments with Bunreacht na hÉireann and the different ways in which EU membership has helped re-configure the domestic political landscape. If it had taken its cues from Denmark and Germany this might well have resulted in a strengthening of the Oireachtas’ ability to control the government in EU matters. This would have been no bad outcome for Irish citizens.

Instead we are facing into a referendum campaign that threatens to bring forth much more heat than light. A win for the ‘Yes’ side in the referendum may indeed provide much needed stability for Ireland within the Eurozone economy. But it may well come at the price of yet again increasing the ‘legitimacy gap’ which characterises EU politics – both at home and EU-wide.

Dr John O’Brennan is a lecturer in European Politics and Society at NUI Maynooth. His email address is john.obrennan@nuim.ie.

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