Constitutionality of the bailout

Cavehill Red · 22-11-2010 9:28pm #1

As far as I can tell, any act of government (such as an EU treaty) that involves ceding any sovereignty to an outside agency requires a referendum approval by the people of Ireland, according to our constitution.

So my questions to you fine legal minds are these:

Does the bailout not constitutionally require referendum approval?

Might it be possible to challenge the constitutionality of any bailout agreement not approved by referendum in the Supreme Court?

fudgez · 22-11-2010 9:41pm

Cavehill Red wrote: »

As far as I can tell, any act of government (such as an EU treaty) that involves ceding any sovereignty to an outside agency requires a referendum approval by the people of Ireland, according to our constitution.

So my questions to you fine legal minds are these:

Does the bailout not constitutionally require referendum approval?

Might it be possible to challenge the constitutionality of any bailout agreement not approved by referendum in the Supreme Court?

How does an EU bailout concede any Irish sovereignty? as far as I understand the Irish government shall still be making all our decisions

Cavehill Red · 22-11-2010 9:49pm

fudgez wrote: »

How does an EU bailout concede any Irish sovereignty? as far as I understand the Irish government shall still be making all our decisions

In the same way that the Lisbon Treaty did - oversight of our governmental activity will now reside with Brussels.

evercloserunion · 22-11-2010 10:06pm

We are not necessarily handing sovereignty over to Brussels or the IMF. All we are doing is taking a loan, and agreeing to certain conditions attached to that loan. Given our current financial and political situation, breaching those conditions would certainly be very ill-advised, but we nevertheless retain the capacity to make our own decisions. Neither the IMF nor the EU gain any new powers to make laws which bind Ireland.

fudgez · 22-11-2010 10:11pm

I've been getting increasingly annoyed about the misuse of the word sovereignty during this crises. I had felt this feeling before but I could not remember when until you mentioned Lisbon.

I remember an awful lot of people misusing the word then too. Sovereignty first of all is an incredibly outdated ideology now used by the media and nationalist political parties to stir people up.

Put simply Sovereignty originally was a term used to describe a sovereign who had total control of every aspect of his subjects lives. It later grew and developed to be a term used when a Nation State is in total control of its legislation.

The latter concept is also outdated as in the western world at least no one nation can claim to be in total control of its legislation as so many outside interests effect it. Being a member of the EU and the Eurozone would be far greater indicators of a loss of "sovereignty" then a bailout or Lisbon.

In truth however the entire notion is ludicrous in the 21st century. Our nation could not possibly stand without Europe and therefore could not claim sovereignty in any regard.

You are free of course to use such words but remember they are a dangerous shortcut to people's hearts and anyone who uses the phrase should be treated with caution IMO.

Cavehill Red · 22-11-2010 10:27pm

Let's try again. I'm asking anyone with constitutional law experience the following two questions:

Does the bailout not constitutionally require referendum approval?

Might it be possible to challenge the constitutionality of any bailout agreement not approved by referendum in the Supreme Court?

If you don't have answers for these two questions, then I'm really not that interested in what you're saying. This thread was created to identify answers to these two questions only.

evercloserunion · 22-11-2010 10:40pm

Cavehill Red wrote: »

Let's try again.

You come in here with that condescending attitude and expect answers? Remember that no one here has to help you with your query, so if you want to get anywhere I would suggest adopting a less obnoxious tone.

Now, as it happens, you have received answers, both from myself and from fudgez. I'm very sorry that the answer is not to your liking but that's the way the law is, it doesn't change just because you want it to.

FreudianSlippers · 22-11-2010 10:41pm

The posts all seem on-topic to me.

Cavehill Red wrote: »

Does the bailout not constitutionally require referendum approval?

No

Cavehill Red wrote: »

Might it be possible to challenge the constitutionality of any bailout agreement not approved by referendum in the Supreme Court?

What would the unconstitutionality be? What Article is it breaching?

22-11-2010 10:47pm

Cavehill Red wrote: »

Let's try again. I'm asking anyone with constitutional law experience the following two questions:

Does the bailout not constitutionally require referendum approval?

Might it be possible to challenge the constitutionality of any bailout agreement not approved by referendum in the Supreme Court?

If you don't have answers for these two questions, then I'm really not that interested in what you're saying. This thread was created to identify answers to these two questions only.

No, the "bailout" probably doesn't need approval.

It really depends on how you frame the "bailout" in terms of whether it is an international agreement, a treaty or a some other such construct.

International treaties that create a charge on the public purse (which this, clearly, doesn't) have to be ratified by the Dail.

Once a treaty is ratified no Constitutional challenge can be taken to invalidate it. (Crotty)

How exactly does the financial assistance package cede sovereignty anyway? When we joined the Eurozone we signed up to specific fiscal targets and outcomes. Nobody went crying about sovereignty then because, rightly, it wasn't and isn't an issue. We've received billions in structural funds from the EU, a body that even before the "bailout" was responsible for a vast proportion of the laws introduced into Ireland on a yearly basis, and in spite of both these things nobody spoke about sovereignty because it wasn't and isn't an issue.

So how do you see us losing sovereignty? It's a spectacularly silly point being bandied about within the media. Don't be taken in.

johnnyskeleton · 22-11-2010 10:49pm

Cavehill Red wrote: »

Let's try again. I'm asking anyone with constitutional law experience the following two questions:

Does the bailout not constitutionally require referendum approval?

Might it be possible to challenge the constitutionality of any bailout agreement not approved by referendum in the Supreme Court?

If you don't have answers for these two questions, then I'm really not that interested in what you're saying. This thread was created to identify answers to these two questions only.

If it DID cede soverignty to the IMF, it could be challenged as breaching Articles 15 and 29 on the basis that the constitution states that laws can only be made by the Oireachtas and signed by the president and Article 29 states that we are a soverign state not bound by the rule of any other body. That is why every time we change the EU treaties or sign up to something that has powers over the state e.g. International Criminal Court, we must amend Article 29 to allow the government to agree those terms.

However, other agreements that do not bind our State e.g. European Convention on Human Rights, where the European Court can only fine Ireland it cannot force us to obey their Human Rights laws, do not require a constitutional amendment.

However, it's largely moot because as evercloserunion states we are not actually ceding any decision making power to the IMF. We are simply agreeing to take on loans based on certain terms. The IMF cannot change the law, only the Oireachtas can do that.

Cavehill Red · 22-11-2010 10:52pm

johnnyskeleton wrote: »

However, it's largely moot because as evercloserunion states we are not actually ceding any decision making power to the IMF. We are simply agreeing to take on loans based on certain terms. The IMF cannot change the law, only the Oireachtas can do that.

Could it be argued that those terms (obviously we haven't seen them but we can guess at what they'll likely be) amount to the impositions of laws on Ireland by the IMF?

22-11-2010 10:57pm

Cavehill Red wrote: »

Could it be argued that those terms (obviously we haven't seen them but we can guess at what they'll likely be) amount to the impositions of laws on Ireland by the IMF?

The money will be channeled through the EFSF I'd imagine to get around that as the framework for the EFSF already exists.

FreudianSlippers · 22-11-2010 10:58pm

Cavehill Red wrote: »

Could it be argued that those terms (obviously we haven't seen them but we can guess at what they'll likely be) amount to the impositions of laws on Ireland by the IMF?

No, and it is the point I was trying to make in AH (although it was taken incorrectly).
We are free to take this loan or not and they are free to give it or not.
They can effectively attempt to force our hand by not giving us the loan, but I think we are in a good bargaining position and they will not be in a position to tell us what to do, but merely suggest what has worked in the past for countries previously dealing with the IMF (England in the 70s, Argentina (?) recently, etc.)

Cool Mo D · 22-11-2010 10:59pm

Cavehill Red wrote: »

Could it be argued that those terms (obviously we haven't seen them but we can guess at what they'll likely be) amount to the impositions of laws on Ireland by the IMF?

No. All changes the IMF request, (note: they cannot demand anything, although they can cancel the bailout if we refuse) have to passed through the dail in the normal way. No foreign body will be imposing them.

fudgez · 22-11-2010 11:01pm

I'm sorry mate but you have fallen for the Redtops shock headlines. As I have already stated in no way is your beloved illusion of sovereignty affected. Now if the EU loan came with the condition that we must ratify treaty X and our goveremnt accepted it without going to referendum then maybe.
This will not happen though.

johnnyskeleton · 22-11-2010 11:05pm

Cavehill Red wrote: »

Could it be argued that those terms (obviously we haven't seen them but we can guess at what they'll likely be) amount to the impositions of laws on Ireland by the IMF?

No, but if a condition of the money being lent was that the IMF could, for example, have the power to pass binding laws on the level of social welfare, then yes, that would be good grounds for a challenge.

The power to accept or reject any term still remains with the Oireachtas. More importantly, even if money is taken on certain terms the Oireachtas could still remove those terms (although the political repurcussions would be drastic).

evercloserunion · 22-11-2010 11:05pm

Cavehill Red wrote: »

Could it be argued that those terms (obviously we haven't seen them but we can guess at what they'll likely be) amount to the impositions of laws on Ireland by the IMF?

It could be argued, but not successfully. What would be the effect of such "laws"? The Oireachtas would retain the power to make legally binding laws which conflict with the conditions set down by the IMF (as bad an idea as that would be).

Cavehill Red · 22-11-2010 11:05pm

Can I ask if any of you answering have a tertiary level specialty in Irish constitutional law or have ever been involved in a case involving constitutional law in the courts?

I can't make myself too clear here - I really only want to hear the opinions of constitutional lawyers on this.

Thanks everyone.

FreudianSlippers · 22-11-2010 11:09pm

Cavehill Red wrote: »

Can I ask if any of you answering have a tertiary level specialty in Irish constitutional law or have ever been involved in a case involving constitutional law in the courts?

I can't make myself too clear here - I really only want to hear the opinions of constitutional lawyers on this.

Thanks everyone.

There are numerous Solicitors, Barristers and legal academics on this forum, all of whom will have education in Irish Constitutional Law. There are also other informed, educated and interested posters whose views are welcome in this forum.

They can if they want to, but let me make myself too clear here: They do not have to identify themselves in any way to you or any other poster.

evercloserunion · 22-11-2010 11:10pm

Cavehill Red wrote: »

Can I ask if any of you answering have a tertiary level specialty in Irish constitutional law or have ever been involved in a case involving constitutional law in the courts?

I can't make myself too clear here - I really only want to hear the opinions of constitutional lawyers on this.

Thanks everyone.

I have studied constitutional law and EU law at third level. Others here are in practice. I don't know what level of expertise you are requiring but to be frank, it really isn't that difficult or complex a question. The response you have received in this thread has been unambiguous. Time to face reality.

fudgez · 22-11-2010 11:10pm

My Credentials come off an overwhelming interest in Irish History. While I admit they may not be 100% accurate to my knowledge they are. I'm sorry my answers are not satisfying for you and hope your face isn't too red when a man of acceptable intellect answers the same as we have.

22-11-2010 11:11pm

Cavehill Red wrote: »

Can I ask if any of you answering have a tertiary level specialty in Irish constitutional law or have ever been involved in a case involving constitutional law in the courts?

I can't make myself too clear here - I really only want to hear the opinions of constitutional lawyers on this.

Thanks everyone.

What? Don't be daft. A few of the people here are FAR and away more knowledgeable on this topic than, with all due respect, you. You have received good, intelligent replies to this topic. If you want to hear only the opinion of specialised constitutional lawyers then hire a solicitor, pay for opinion of Counsel and get the same answer from them that you got for free here.

Cavehill Red · 22-11-2010 11:28pm

Fine. I'll do that tomorrow.

22-11-2010 11:32pm

In all seriousness Cavehill Red, best of luck with it.

I think it's a colossal waste of money but, ultimately, it's your money and you are entitled to spend it in the protection of your rights (if that is how you see this, I assume it is?)

In any case I hope that you get satisfaction in whatever answer you are given.

cushtac · 23-11-2010 2:15am

Cavehill Red wrote: »

I can't make myself too clear here - I really only want to hear the opinions of constitutional lawyers on this.

Go off and hire one so.

Cavehill Red · 23-11-2010 3:19am

Deleted User wrote: »

In all seriousness Cavehill Red, best of luck with it.

I think it's a colossal waste of money but, ultimately, it's your money and you are entitled to spend it in the protection of your rights (if that is how you see this, I assume it is?)

In any case I hope that you get satisfaction in whatever answer you are given.

Generally I treat lawyers like doctors. You don't go to a gynaecologist for a cardiac arrest, and similarly I use different solicitors depending on what I need done. In other words, seek out a specialist.

Now, it seems to me that since the government intends to indebt me to the tune of tens of thousands of euro without my permission, that it might be worth combining resources with some likeminded people and pursuing legal action to prevent this from occurring.

A couple of grand each would be a decent punt in my opinion if it were to result in the tens of thousands of debt that the government wishes to put on my shoulders with this bailout vanishing.

All I wanted to ascertain from this forum was where to begin. I'm no constitutional expert, but I cannot see that there would be no provision in the constitution that wouldn't at least make the involuntary indebting of the nation to pay off private debt at least arguable.

A couple of sections of the constitution have been mentioned and I thank that poster profusely. That's the sort of information I was looking for - somewhere to begin. Something to take to a constitutional legal expert and have them consider.

We'll be meeting this week to explore how to best pursue this and to consider who might best represent us.

coylemj · 23-11-2010 4:01am

So let's say you stop the bailout. How do you propose that the country is funded from the middle of next year when the current war chest runs out?

Oh yes, I imagine you'll tell me that it's the principle that matters, well I'm not really interested in constitutional theory if that's ok with you, I'd just like to find a way that will allow the country to function for the next few years until we cab get the public finances and the budget defect under control.

Cavehill Red · 23-11-2010 4:05am

coylemj wrote: »

So let's say you stop the bailout. How do you propose that the country is funded from the middle of next year when the current war chest runs out?

We deal with the deficit. You don't deal with the deficit by taking on 70 billion more debt.

coylemj wrote: »

Oh yes, I imagine you'll tell me that it's the principle that matters, well I'm not really interested in constitutional theory if that's ok with you, I'd just like to find a way that will allow the country to function for the next few years until we cab get the public finances and the budget defect under control.

Because it will function so much better when we owe multiples of our GDP that's not actually our accrued debt. :rolleyes:

evercloserunion · 23-11-2010 4:16am

Cavehill Red wrote: »

Generally I treat lawyers like doctors. You don't go to a gynaecologist for a cardiac arrest, and similarly I use different solicitors depending on what I need done. In other words, seek out a specialist.

Now, it seems to me that since the government intends to indebt me to the tune of tens of thousands of euro without my permission, that it might be worth combining resources with some likeminded people and pursuing legal action to prevent this from occurring.

A couple of grand each would be a decent punt in my opinion if it were to result in the tens of thousands of debt that the government wishes to put on my shoulders with this bailout vanishing.

All I wanted to ascertain from this forum was where to begin. I'm no constitutional expert, but I cannot see that there would be no provision in the constitution that wouldn't at least make the involuntary indebting of the nation to pay off private debt at least arguable.

A couple of sections of the constitution have been mentioned and I thank that poster profusely. That's the sort of information I was looking for - somewhere to begin. Something to take to a constitutional legal expert and have them consider.

We'll be meeting this week to explore how to best pursue this and to consider who might best represent us.

So you started this thread looking for an informed opinion, but now you're going to ignore all the informed opinions you have received and pretend the constitution says what you want it to say? You remind me of the farmer who took that case challenging Lisbon II. I wonder how much it cost him just to be laughed out of the High Court. It's your money though, so have fun.

By the way... without the bailout, we'd still have to borrow money, and at a much higher rate of interest.

Cavehill Red · 23-11-2010 4:46am

evercloserunion wrote: »

So you started this thread looking for an informed opinion, but now you're going to ignore all the informed opinions you have received and pretend the constitution says what you want it to say?

I'm not claiming the constitution says anything. It is what it is. It is open to interpretation by the actions of government and the rulings of the Supreme Court as far as I'm aware.
I'm interested in exploring the possibility of ruling this endebting of the Irish people illegal under the constitution. I see no reason to encumber myself with Anglo Irish Bank's debts.
I came into this forum seeking advice on where to begin that process. Only one poster offered any useful information. He has my thanks.
But I'll know better next time.

evercloserunion wrote: »

You remind me of the farmer who took that case challenging Lisbon II. I wonder how much it cost him just to be laughed out of the High Court. It's your money though, so have fun.

And soon it will be Roman Abramovich's money if someone doesn't take action. And that's all I'm exploring - how best to take action.
Incidentally, I consider it a contribution to our democracy that Lisbon II was challenged in court. And I consider it a denial of democracy that the challenger lost. We had a vote and voted no. We were told to vote yes for our jobs in the context of an illegal EU advertising campaign, and voted yes. Some democratic process that is. I'm still waiting for the jobs, incidentally.

evercloserunion wrote: »

By the way... without the bailout, we'd still have to borrow money, and at a much higher rate of interest.

Yes, we'd have to borrow to cover our deficit, but NOT to cover 70 billion of banking debts. Seems like a good deal to me in the current circumstances.

K-9 · 23-11-2010 5:35am

Is this bail out, if we choose to take it, any different from our normal borrowing?

Eg. we've already borrowed to pump money into Anglo and other banks, for wages, welfare and other day to day stuff. Are you saying this is different?

The Government has the option to refuse the bail out if it so wishes. Maybe Cavehill Red can advise them on how to cut €17/18 Billion or more on expenditure like pay, welfare, running hospitals, schools and other important stuff like that.

The Public Service pay bill is about €18 Billion and Welfare is €21 Billion, we use the other €10 Billion to keep the country going. That gives you an idea of the cuts.

Constitutionality of the bailout

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