governments and referendums

booom wrote: »

here's something some of you may have ideas on. It struck me recently how the Irish government comes down trenchantly on one side or another when an issue has to be decided by referendum. OK, fair enough, you might say- they're expressing what they deem to be the most preferable result, and as a government, people naturally look to them for advice and a certain level of guidance. But... surely in a representative democracy (i know we could split hairs over use of terminology here) the governments' (or at least the Dail's) mandate for a course of action should emanate from a referendums result? So, lets take the upcoming fiscal treaty as an example; the govt. clearly want a yes- and will probably get it., but what if there's a no result? How can a govt. that has nailed its colours to the mast then act on the public's behalf? Should govt. avoid being compromised in advance of the popular will of the electorate being known and be more like the electoral commission and take a neutral tone in the run-up to these events? opinions, suggestions?

In relation to any referendum on a treaty they can't - because by definition they've already signed us up to the treaty in order for us to have to vote on allowing them to ratify it.

If they've already signed their name to it, how can they then not support its ratification?

booom wrote: »

the fiscal treaty was just an example- think lisbon, nice etc

Same thing. In relation to EU treaty ratification the process will always be

Step 1. Government signs Treaty.
Step 2. Government asks electorate for permission to ratify treaty.

If step 1 didn't happen there would be no need for step 2. Since step 1 always precedes step 2, the Government always has to support the ratification by virtue of the fact that they signed the thing.

Even in an "ordinary" referendum, the government will have a particular viewpoint, since it will usually be the sponsor of the bill that is being referred to the people.

In respect of external treaties, the government is acting as a negotiator on behalf of the Irish people, and dealing with other countries/bodies. It has to maintain a position of good faith in order to negotiate on Ireland's behalf - if the Irish government had a reputation for bad faith, its negotiating position will not be taken seriously, and Ireland lacks the financial and military muscle to make up for that.

So, when an Irish government agrees a final version of a treaty, it is recognising that the deal it has obtained from the negotiations is as good as it believes it can get.

It's then up to the government to get that deal passed at home in Ireland, either by Cabinet decision, Oireachtas vote, or referendum.

Why does it have to try to get the deal passed? Because otherwise it is not acting in good faith. If the Irish government believes it can get a better deal on a treaty because the treaty is likely to be unpopular with the Irish public, the time to say that is at the negotiations. That's good faith. But to go back to Ireland and say "this treaty is a crock" is to say "the Irish government signing off on something is worthless", and that is something that would be taken into account in future negotiations.

The rules of diplomacy and international negotiation are pretty fixed, and are a pretty logical outcome of the problem that if people negotiates in bad faith, there's no point to negotiating. You could say, of course, that Michael Collins died on the basis of exactly this principle.

One of the outcomes of this in Ireland is that if a treaty can be passed purely by Cabinet vote, there really isn't any way the government, having agreed to it with other countries, can avoid passing it. There are very few excuses that can be offered that allow the government to retain a position of good faith. In this current set, this is the Article 136 amendment - there is no 'good faith' reason the government can offer for not passing it by Cabinet vote. They may delay, but cannot in good faith refuse.

And where the government commands an automatic majority in the Dáil, this is also the case - in the current set, this is ESM, which requires a Dáil vote. Again, short of a rebellion by their party against the Whip, there is no way in good faith not to pass the Treaty, having agreed it.

cordially,
Scofflaw

Scofflaw wrote: »

Even in an "ordinary" referendum, the government will have a particular viewpoint, since it will usually be the sponsor of the bill that is being referred to the people.

Certainly, as the choice to hold an ordinary referendum is actually out of the government's hands - it is the sole choice of the President.

In respect of external treaties, the government is acting as a negotiator on behalf of the Irish people, and dealing with other countries/bodies. It has to maintain a position of good faith in order to negotiate on Ireland's behalf - if the Irish government had a reputation for bad faith, its negotiating position will not be taken seriously, and Ireland lacks the financial and military muscle to make up for that.

So, when an Irish government agrees a final version of a treaty, it is recognising that the deal it has obtained from the negotiations is as good as it believes it can get.

It's then up to the government to get that deal passed at home in Ireland, either by Cabinet decision, Oireachtas vote, or referendum.

Why does it have to try to get the deal passed? Because otherwise it is not acting in good faith. If the Irish government believes it can get a better deal on a treaty because the treaty is likely to be unpopular with the Irish public, the time to say that is at the negotiations. That's good faith. But to go back to Ireland and say "this treaty is a crock" is to say "the Irish government signing off on something is worthless", and that is something that would be taken into account in future negotiations.

The rules of diplomacy and international negotiation are pretty fixed, and are a pretty logical outcome of the problem that if people negotiates in bad faith, there's no point to negotiating. You could say, of course, that Michael Collins died on the basis of exactly this principle.

One of the outcomes of this in Ireland is that if a treaty can be passed purely by Cabinet vote, there really isn't any way the government, having agreed to it with other countries, can avoid passing it. There are very few excuses that can be offered that allow the government to retain a position of good faith. In this current set, this is the Article 136 amendment - there is no 'good faith' reason the government can offer for not passing it by Cabinet vote. They may delay, but cannot in good faith refuse.

And where the government commands an automatic majority in the Dáil, this is also the case - in the current set, this is ESM, which requires a Dáil vote. Again, short of a rebellion by their party against the Whip, there is no way in good faith not to pass the Treaty, having agreed it.

cordially,
Scofflaw

Agreed 100%; my point is simply that once the constitution is amended to allow ratification of the treaty, I see nothing in the wording that would require us to hold another referendum to ratify a slightly modified version (à la Hollande's proposal) if that was included in the treaty. The idea that the government will be bound to ratify the existing treaty and that's that is not necessarily correct. Now obviously this is all pie in the sky stuff because we don't know if there will be any amendments at all - but I'm making the general point in response to the notion voiced by the "no" side that the treaty we are currently "voting on" is not going ahead.

Of course the situation may be different if it is an additional agreement - that may well require further constitutional amendments unless the Attorney General doesn't feel that it is necessary. But hey, the President might and we might get our first Ordinary Referendum

PopeBuckfastXVI wrote: »

The wording includes the date that the treaty was signed, if the date changes, which by definition it must in the event of a 'new deal' being signed or ammended, then the government does not have permission to ratify that version.

tl;dr: The date is in the wording, the date would change, another referendum would be required.

Not true. People seem to think that Crotty means that we have to have a referendum before the Oireachtas can ratify any European Treaty and this is not true.

Crotty is not clear, but there are certainly some treaties which can be ratified without recourse to the people.

The Oireachtas has certain powers, limited by the Constitution. The Supreme Court, in Crotty, held that while one of those powers is the ability to ratify treaties, if those treaties limit certain constitutional competencies, then the people, rather than the Oireachtas, have to approve the ratification by providing for it in the constitution.

So a change of date clearly falls outside Crotty as it has no impact on any competencies and there is no need for a referendum. A change of terms may or may not fall within Crotty and thus may or may not require a referendum. Would all come down to what the terms changed were.

FreudianSlippers wrote: »

Depends on your definition of the word "done" I suppose. Would modification require re-signing? So long as the treaty is not re-signed it is still "done" on the 2nd March 2012 IMO. That's why I think a slightly modified version would not constitute a "new" treaty and require another referendum. So long as the constitutional issues or sovereignty issues are sufficiently covered in the initial referendum (or the date it was "done" in this regard) then slight alterations fall within the competency of the government.

Modification would include re-signing. And I'm going with the RefComm's version here:

If we ratify the treaty and then the wording of the treaty is changed afterwards, will the same amendments apply to us?

If we vote yes, we give our Government the power to ratify this specific Treaty. It will come into effect if at least 12 euro area countries ratify it and, if we are one of those countries, it will apply to us. If enough countries do not ratify it, it will not come into effect at all.

Any changes to the Treaty will have to be agreed by all the countries involved, including us. If changes were to be agreed before the Treaty comes into effect (and this is unlikely given the European Council’s decision on 23 May), that changed Treaty would not be the one that was the subject of the referendum and another referendum would probably be needed to allow our Government to ratify the changed treaty.

I can see their "probably" there, but since they're also quite definite the "changed Treaty would not be the one that was the subject of the referendum" I think that has to apply to the question of whether the changes were such that the new version no longer required a referendum.

cordially,
Scofflaw