Analysing the Referendum Wording

This is the wording of the proposed amendment to the Constitution, adding a new subsection to Article 29.4 .

The State may ratify the Treaty on Stability,  Co-ordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012.  No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

Now, having studied it carefully, I’m coming to the view that this proposal holds within it the seeds of absolute, authoritarian government.

Breaking it down into its constituent parts, we have the following:

The State may ratify the Treaty on Stability,  Co-ordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. 

That seems plain enough, but then we have this:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty

What I understand by this is that the State may choose to do anything it wishes in the future, without fear of constitutional challenge if it considers that thing to be necessitated by its obligations under the treaty.  To put it another way,any future government wishing to impose  measures, however extreme or oppressive, has a constitutional carte blanche.

And finally:

[No provision of this Constitution ] prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

In other words, any outside body defined as competent under the treaty has the right to impose measures on the Irish, however oppressive, with full constitutional protection.

Who will decide what measures are necessitated by the State’s obligations?  This is not defined.  Any future government could choose to pass a law about almost anything, and claim that it was necessitated by its obligations under the treaty.  Supposing a government chose to suspend elections to parliament on the pretext of this being necessitated by its obligations.  Could it do so without constitutional hindrance?

If one of these undefined competent bodies (The EU Commission?  The ECB?) decided to suspend democracy in Ireland, would that be protected by this amendment?

If either the government or an external body decided to impose martial law, mass internment or censorship of newspapers, could they do so without obstacle?

I can’t say this for certain, but the wording of the amendment certainly looks loose enough to allow for interpretation.

Am I wrong?  Opinions anyone?

35 thoughts on “Analysing the Referendum Wording

  1. As you know, I didn’t vote on the Lisbon thing because I couldn’t make head nor tail of it. Same again this time, can’t get a straight answer out of any of them. And I like to think I’m no fool. It’s ridiculous to ask the heaving masses to deliver an opinion on what is essentially an international legal contract — riddled with references to other obscure points of European legislation. God Bless All who sail in her, I say. I’m sitting this out too.


  2. Article 29.4.10 of Bunreacht na h-Éireann already reads: “No provision of this Constitution invalidates laws enacted, acts done or measures 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 the institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having force of law in the State.”

    This referendum proposes to allow in the Constitution that the State “may ratify the Treaty” under the same conditions. The legislation to implement the provisions of the Fiscal Treaty have to be put in place before the end of 2013 so there will be time and space to debate the issues.

    The way I see it, the Fiscal Treaty is an imperfect but necessary re-stating of the rules of the euro for its members to be bound by. It can provide the platform on which proper reform of the euro and EU as a whole can be negotiated. It has been agreed and will be implemented as is by most member states.

    We can choose to opt out of this and go our own way but that will mean we can’t access the ESM funding and would be reliant on massively increased austerity or much more expensive borrowing from the markets, IMF or maybe China, none of whom will be keen to lend to a country that won’t sign up to basic principles of keeping debt under control.

  3. none of whom will be keen to lend to a country that won’t sign up to basic principles of keeping debt under control.

    I may be wrong but did we not already sign up to those principles under Maastricht? They were a condition of entry into the Euro.

  4. Exactly. That’s why I described this as a “re-stating of the rules of the euro”. Except this time we’re supposed to really, really mean it.

  5. That’s the standard wording of any EU-style amendment to the constitution.

  6. “Not keen to lend to us”.. “really really mean it.” Sorry Naoise but this sounds a bit wishy washy to me.

    Why is an amendment to the constitution required if there’s already an appropriate provision there? So we’ll really really mean it? Give me a break.

    I found this helpful Darwin.. if you want to have a read.

    My view is we wouldn’t have a massive debt to GDP ratio, if we weren’t forced to take on bank debt.. and now we’re being punished again to reduce that debt with stricter rules with the treaty.. I really don’t think also funding won’t be forthcoming if required, as it’s not in the interests of German banks.

    Also regarding the ESM funding.. here’s an interesting thread on that.

    Seems to me ESM funding will be for the banks.

  7. @FF1 “Not keen to lend to us” = Will not lend to us or not lend to us at affordable interest rates. “Really, really mean it” = legislative commitment to Maastricht principles of as restated in the Fiscal Treaty.

    Ratification of international treaties requires an amendment to the Constitution to allow the State to do so. The Fiscal Treaty does not fall under the ordinary EU treaties so it needs its own constitutional provision.

    Massive debt to GDP ratio is partly down to the banks, but to a much larger extent on the gap between the what the Government raises in tax and spends on services having relied to a lunatic degree on property related taxes continuing indefinitely and spending chasing after it.

    It is explicit that Ireland will not get funding from the ESM post mid-2013 if we do not ratify the Treaty which is itself the result of tortuous negotiations among member states to try and find the beginning of a solution to the crisis. We can’t afford delay and we can’t afford to play a game of chicken with the rest of the EU. We will lose. We need continued funding to pay current (as well as bank) debt and to roll over maturing debt and we will not get funding as cheap from anywhere else.

    Ratifying the treaty shows continued goodwill on Ireland’s part (albeit through gritted teeth) and keeps us at the table where we can push for growth and stimulus pacts in tandem with these fiscal rules.

  8. It seems to me, that this “austerity” pact has two sides, austerity for some, but not for others and for that reason alone it is not socially just. Notwithstanding, we’re urged to vote it through without enough plain English analysis, in too short a time frame, complete with threats, menaces and dire warnings if the vote is not what those who would preserve the status-quo deem acceptable. That makes me very uneasy, I mean, do we really want more of the same?

  9. “Ratification of international treaties requires an amendment to the Constitution to allow the State to do so”
    So the treaty cannot be ratified without an amendment to the constitution?
    I don’t think that’s correct.

    “Massive debt to GDP ratio is partly down to the banks”
    Absolute nonsense Naoise.

    I would change that to mostly down to the banks.
    Take a look at the table on page 4.
    ‘Pre-crisis debt and Deficit Ratios in Ireland since Eurozone Entry’

    “It is clear however that Ireland’s problems derive mainly from a banking bust exacerbated by
    weaknesses in the design of Europe’s monetary union and the policy response of both the Irish authorities and the European Central Bank.
    From the Euro’s inception in 1999 up to 2007, both debt and deficit ratios in Ireland were comfortably within the Stability and Growth Pact ceilings. The gross debt ratio was only 25% of GDP at the end of 2007.”

    We’re now at 119%.

  10. Naoise — Thanks for the clarification and apologies for the delay responding but I’ve been out all day doing the kind of things that make life more enjoyable.

    I accept that a similar wording already exists in the constitution, but what is your view of the way I interpreted this proposal? Does it give future governments carte blanche to enact whatever legislation they choose?

    I genuinely don’t know the answer to this.

  11. Does it really matter what the treaty says and it does it really matter what way you vote? We still have the franchise but what power do citizens wield in the EU today?
    See how little the opinions of the people of Greece matter in Germany, where EU power now lies exclusively.
    Voting in EU matters is now a purely private personal thing we indulge in because it makes one feel better about oneself. It has no meaning beyond that other than to help maintain the illusion that we assent to be treated this badly by the German govt acting on behalf of the german banks that lent so recklessly in pursuit of bigger profits.
    If we don’t want to govern ourselves we should have stayed part of the UK. What in God’s name were we thinking?

  12. “. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

    This gives the Government a wide margin to implement any laws as dictated by EU or the Troika. The fact that Ireland was left out of the construction of this treaty is worrying . I will not vote yes as it gives such a broad and undefined scope of powers.

  13. Bock, any legislation proposed by Irish Governments must be passed through the Dáil and Seanad and signed off by the President. We elect the first and last directly. At any stage, cases may be referred to the Supreme Court and/or European Court of Justice. I think there are good checks and balances to mitigate against the extremes about which you are concerned, though nothing should be taken for granted and eternal vigilance is required. In this case, I think it’s an imperfect, incomplete but practical first step in what will hopefully lead to stability in the eurozone and internationally.

    @FF1 The reason we’re having a referendum is that the Attorney General decided that what was envisaged in the Fiscal Treaty was of sufficient gravity to have to be enabled by a Constitutional amendment, having regard to the Crotty judgment. So, no, the Fiscal Treaty cannot be ratified by Ireland without a constitutional referendum.

    Yes, the bank debt is frighteningly large and yes, we should never have been saddled with it but the deficit even with the bank debt stripped out, still requires to be managed. The Fiscal Treaty sets out rules common to all signatories by which this can be done to avoid Governments running up massive unsustainable debt with some leeway for extraordinary circumstances.

    The fact remains that the EU is a guarantor of funding for Ireland to pay for public services. Without the expression of solidarity and goodwill (through clenched teeth) that approving this Treaty would demonstrate, we’ll be cut adrift as a country and Europe will lurch back into crisis mode again.

    Voting No is just too big a risk this time.

  14. Naoise — When a government has an overwhelming majority, the Dáil and Seanad are little more than rubber stamps.

    In the interests of knowing exactly what this amendment means, I’d like someone to tell me if my analysis of the wording is mistaken, and if so, in what regard. I don’t think that’s an unreasonable thing to ask.

  15. Bock, to some extent you’ve answered your own question: this Government and any future Governments already do have carte blanche to introduce whatever legislation they choose. They do so with the mandate of the electorate from a general election based on a programme for Government which presumably bears some resemblance to the manifestos its party or parties put before them.

    However, given how difficult it’s been for a Government with a massive majority to impose a €100 property charge and septic tank inspection fees, I can’t see how they’d manage to get away with internment, censorship or suspension of parliament. The language of the amendment proposed is the same as that we’ve lived with for many years. The Constitution is ultimately only as strong or as weak as the will of the citizens to uphold it.

  16. If there nothing new in the Treaty.. wording already within our consitution handing over power to the EU .. then why are we having a Referendum/Treaty at all?

    Everything seems to be failing into the ‘nothing new here meme’ with some commentators.

    Also RE: “but the deficit even with the bank debt stripped out, still requires to be managed” I agree Naoise, but our debt to GDP ratio hasn’t been factored in without the bank debt.. so the “managing”/austerity required with the Treaty is too severe. The bank debt wasn’t negotiated to be excluded.

  17. Normally, a government would be restrained by constitutional obligations from introducing oppressive legislation, but when we build in constitutional immunity, as specified in this amendment, the groundrules change.

    Are you saying that oppressive legislation could not be introduced on the basis that it was necessitated by the treaty??

  18. FF1 – I agree. Having the bank debt included makes the adjustment severe to begin with but I defer to Karl Whelan on the detail here: and point out that the alternative to approving the Fiscal Treaty would be far more severe as we’d be cut off from ESM funds.

    My point about the nothing new refers to the language used. What is new is an agreement to adhere to old rules set out in Masstricht and a procedure to enforce them and for them to be enshrined in national legislation. In the opinion of the Attorney General, this requires a constitutional referendum.

    Bock, oppressive legislation such as you describe could not be imposed by the EU or its institutions because they are not competencies of the EU, they are competencies of member states and not covered by the “constitutional immunity” to which you refer. That applies equally to the existing Art. 29.4.10 as it will to the new clause if we pass the referendum.

  19. Naoise — I’m talking about legislation passed by a future Irish government. Can you confirm that such legislation does not receive constitutional immunity as a result of the proposed amendment?

  20. The ESM Treaty has no European Constitutional Grounds or a Mandate from every Citizen in Europe with them not having an individual Vote concerning their Constitutional Right in regard to this Treaty,. Hence why the Legality clause to write this in all European Countries Sovereign States Laws – Therefore the ESM cannot be brought to European Court of Justice Against Fraud /Human Rights because of the archives of the ESM and all documents therein belonging to the ESM or held by it, or their premises shall be inviolable, because all European Sovereign State Central Banks will be under ESM Control and Regulations,

    But they can bring any European State to Court and fined if or when these very Strict Budgetary Regulations are not met by that States Government. Therefore you will have an Unelected Tyrannical Force of Bankers, Investors and Speculators running all the EU Euro zone Countries instead of the Elected Representatives of the Peoples in all National Elections Across Europe.

    The ESM will be untouchable in every sense of the word in Law, in a Europe with No Sovereign State Financial Democracy and with no sense of decency to any of its Citizens. It will become an entity that will control everything and everyone in Europe. There is one very important fact about this ESM Treaty that no one has touch upon yet i.e. All Monies that go through the Euro zone Banks e.g. interbank lending which requires Collateral, Private Investors and Corporate Investors. i.e. Private Corporate Banks within that State that are regulated by there own National Central Banks in each Sovereign State across Europe under this Treaty along with the Fiscal Compact Treaty are to become Public Debt Monies.
    Therefore there is no distinction between Sovereign Debt, Private Debt and Corporate Debt,

    Because all Monies from the ECB, ESM or the IMF will be all classed as Public Debt across the Euro zone Countries – for which every citizen in the Euro zone is being held accountable for that Public Debt – this ESM Treaty was designed based solely on what happened here in Ireland in September ’08 which was instigated by the ECB with Germany and France at the helm stirring it through the contagion- hence the present Euro Crisis/ Contagion which is happening Now in Ireland’s Case and with further Austerities measures to come to service all that Debt which will cost the Irish People € 400 Billion in total.

    Will the ESM, a Monolithic Giant is it to become the European International Monetary Fund to Compete with the IMF or will they combine together with their own Agenda or will the EU become The United States of Europe. Last December and in February 2012, the ECB released over 1 Trillion Euro not for a European Job Stimulus Package. No but for all European National Central Banks and Private Banks within Europe ( 800 in total ) to Buy their Countries State Debt at the low 1% Interest Rate. Then they gave Volkswagen Corp, of Germany a loan of 2 Billion Euro, at 1% Interest Rate over three years. But the so called Leaders of the Sovereign States of Europe came up with this ESM Treaty in secret last July and then signed on 2nd February, 2012 with little or no Media Coverage because there was none associated with a New Treaty fanfare. I thought and believed that the EU was based on Democracy among other Sovereign States within Europe fellow voters.

    I truly believe the complete opposite right now concerning this ESM & the Fiscal Compact Treaties. They are there for us to commit Economic Treason Constitutionally to Our Sovereign Isle of Ireland and in doing so – Thus covering up past Corruptions by our Politicians, Bankers, Speculators, the EU, and the ECB in association with the IMF and with no chance of bringing corrupt Bankers, Politicians, Bondholder Investors and Speculators to justice here in Ireland – That I believe explains the Legality clause and secrecy associated with these Treaties.

    s this where Europe is going – A Totalitarian Route – that isn’t Democracy … it is a Dictatorship by Unelected and Unseen Tyrannical Bureaucrats by over 800 Banks and Sovereign State Banks within Europe which will lead us to more austerity by austerity and more austerity…… The only thing that can possibly stop this from happening are the Irish People and our precious Constitution which is unique in Europe …. Because we the Irish People individually do have a say in Europe thanks to our Fore Fathers for their Children’s Children and their Grandchildren … Wake up People I beg you before it’s too Late.

    Joe Cunningham

    Proud to be Irish … guaranteed

  21. Only legislation which has specific relevance to the provisions of the treaty in terms of technical budgetary and fiscal management, the work of the NTMA etc. would be protected from constitutional challenge.

    Any attempt by the Government to impose martial law, suspend parliament or impose censorship through legislation would not be within the scope or competency of this or any other treaty provisions and would be unconstitutional and contrary to the EU Charter of Fundamental Rights.

  22. How is the mechanism defined to ensure that a government does not use the pretext of the treaty to introduce oppressive legislation?

  23. Joe Cunningham, well said!
    The more I read on the ESM, I more I tend to agree with you.

  24. Our Irish Government are not telling us the truth about this Fiscal Compact Treaty and the ESM Treaty combined – It gives Europe Total Control over every one and everything that is European and nothing to the Workers or its People…. God help us all if this Referendum is passed.

  25. Bock, the ultimate guarantor against oppression in respect of EU law is the Charter of Fundamental Rights

    FF1 and Joseph Cunningham, granted we’ve all been screwed over by the rapacious international financial machine and we’re all rightly angry about it. However, I see the ESM as analagous to the credit union movement: a fund, paid into my members who have a common bond, against which loans can be drawn down in certain circumstances, to enable members to have an alternative to the markets operated by said rapacious international financial machine. To my mind, adopting the Fiscal Treaty is us signing up to the rules and regulations of this giant credit union. I don’t see the big conspiracy.

  26. Naoise — I hope you don’t think that this post is about some imagined conspiracy. I’m asking about the wording, which is the right of every citizen. It should be properly constructed, and I have misgivings about some of it.

    Do you think I should not ask these questions?

  27. Bock, you’re absolutely right to ask the questions and I’m glad you did because it’s made me think about it carefully. My comment about not seeing a big conspiracy was in reference to Joseph Cunningham’s post.

    It might be worth asking the Referendum Commission to clarify the position on the language used in the proposed amendment for a definitive answer as I’m not an expert in constitutional law.

    But keep asking questions and thanks for this post.


  28. Why not? It’s not the Ombudsman, it’s the Referendum Commission, which uses the office of the Ombudsman.. It’s chaired by Judge Kevin Feeney with the Clerks of the Dáil and Seanad, the Ombudsman and the Comptroller and Auditor General. They’re usually pretty good at responding to citizens’ queries. You could send them this post asking them to reply and post the response?

  29. It’s fairly standard, and while obviously open to abuse
    I think the bit you should look at is IN the treaty whereby the agents of austerity and there funds are immune. So we’d be voting for more austerity and less accountability, and showing the investors our unlimited gullibility.

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