[Permabear]

Eamon Gilmore has announced in the Dáil that the referendum on the Fiscal Stability treaty will take place in just over two months' time, on Thursday, 31 May 2012.

We will vote on whether the subsection below should be inserted into article 29.4 of the Constitution:

"The State may ratify the treaty on stability co-ordination and governance in the economic and monetary union, done in Brussels on March 2nd, 2012. No provision in 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."

(Source: Irish Times)

The government parties and Fianna Fáil are calling for a "Yes" vote. Predictably, Sinn Féin and the ULA are opposed.

I'd love to know legally informed posters' opinion on the wording above.

[SnowDrifts]

Basically the said treaty trumps our Constitution. I think a study of the treaty would be more important.

[Scofflaw]

Originally Posted by SnowDrifts

Basically the said treaty trumps our Constitution. I think a study of the treaty would be more important.

"Trumps our constitution" is an over-broad (and over-used) phrase, although I'd agree with the general thrust of your comment, since the treaty - and any legislation "necessitated by the obligations of the State under that treaty" - is exempt from constitutional challenge.

To be honest, though, I would be more concerned by such exemptions if I felt the Constitution was particularly relevant to daily life.

cordially,
Scofflaw

[Dirk Gently]

Originally Posted by SnowDrifts

Basically the said treaty trumps our Constitution. I think a study of the treaty would be more important.

Pretty much yeah.

From my reading any laws enacted under the treaty become law in the Irish state as the treaty shall not be challenged in any way by our constitution.

Does that mean if at any future point an elected government wants to opt out of this treaty we will require another referendum to essentially remove this one? Does this block the Irish government from not complying with legislation?

[BlaasForRafa]

I'm not a lawyer so I could be getting this completely wrong but this provision looks like it gives the government of the day carte blanche to do whatever it likes and justify it as being necessary to the performance of the stability pact.

For example, it would seem that a government could get rid of child benefit payments and justify it as being necessary despite the provisions in the constitution relating to the child and the family etc. Now thats an extreme and broad brush example and no government that wished to get re-elected would do it but it would seem that its possible under this provision.

If this amendment were time limited (say 8-10 years) or subject to reconfirmation with another referendum in 8-10 years than it might seem less powerful than it is.

On another point entirely, if there was a significant debt writedown (not the payment delay thats currently being proposed) then I might be more inclined to vote yes than I am now. I realise thats a mercenary viewpoint but so what, I'm not ashamed to admit I'm open to inducement.

[Scofflaw]

Originally Posted by BlaasForRafa

I'm not a lawyer so I could be getting this completely wrong but this provision looks like it gives the government of the day carte blanche to do whatever it likes and justify it as being necessary to the performance of the stability pact.

For example, it would seem that a government could get rid of child benefit payments and justify it as being necessary despite the provisions in the constitution relating to the child and the family etc. Now thats an extreme and broad brush example and no government that wished to get re-elected would do it but it would seem that its possible under this provision.

If this amendment were time limited (say 8-10 years) or subject to reconfirmation with another referendum in 8-10 years than it might seem less powerful than it is.

On another point entirely, if there was a significant debt writedown (not the payment delay thats currently being proposed) then I might be more inclined to vote yes than I am now. I realise thats a mercenary viewpoint but so what, I'm not ashamed to admit I'm open to inducement.

Actually, that illustrates quite well the kind of problems I have with phrases like "trumps our constitution", because that's a similarly over-broad reading.

If a government decided to do away with child benefit, then, first and foremost, there's nothing in the Constitution to stop them doing so.

Second, assuming that there were something in the Constitution which would otherwise prevent them, they can't merely wave at this and claim it as protective. In the inevitable court challenge, the government would be forced to show that the abolition of child benefit was a specific outcome of treaty implementation - which, unless child benefit is specifically mentioned in the treaty, they couldn't possibly do.

At most, the government could show that compliance with the treaty meant that government expenditure compared to revenue had to remain within a certain envelope, and that remaining within this envelope - given the government's other spending and taxation choices - required a level of savings that could be financed by abolishing child benefit.

It should be immediately obvious, I hope, that the abolition of child benefit under those circumstances is in fact the outcome of the government's other spending and taxation choices, and is one possible way of meeting the targets, and therefore is not in any way specifically "necessitated by the obligations of the State under that treaty". Therefore, unless all the other spending and taxation choices had better constitutional protection than child benefit, there could be no obligation on the state to engage in something constitutionally repugnant to meet the targets in the treaty.

The exemption from constitutional challenge for treaty-derived law is not a carte blanche, but a very narrow exemption only for what can be shown to be a direct obligation of the treaty in question.

cordially,
Scofflaw

[Scofflaw]

Originally Posted by Dirk Gently

Pretty much yeah.

From my reading any laws enacted under the treaty become law in the Irish state as the treaty shall not be challenged in any way by our constitution.

Does that mean if at any future point an elected government wants to opt out of this treaty we will require another referendum to essentially remove this one? Does this block the Irish government from not complying with legislation?

No, because the effect is permissive rather than obligatory - "the State may ratify the treaty" rather than "the State shall ratify". Should the state decide at some future point to reverse ratification, then domestically, no referendum is required.

We don't vote in referendums to ratify treaties - we vote to give the Oireachtas or Executive the permission to do so if they choose.

cordially,
Scofflaw

[Dirk Gently]

Originally Posted by BlaasForRafa

I'm not a lawyer so I could be getting this completely wrong but this provision looks like it gives the government of the day carte blanche to do whatever it likes and justify it as being necessary to the performance of the stability pact.
.

that wouldnt be as bad as my reading of it as it at least leaves a degree of accountability. It looks to me like carte blanche is being given to europe, over the heads of our own government.

Article 7 in particular is worrying

T/SCG/en 15

ARTICLE 7
While fully respecting the procedural requirements of the Treaties on which the European Union is founded, the Contracting Parties whose currency is the euro commit to supporting the proposals or recommendations submitted by the European Commission where it considers that a Member State of the European Union whose currency is the euro is in breach of the deficit criterion in the framework of an excessive deficit procedure. This obligation shall not apply where it is established among the Contracting Parties whose currency is the euro that a qualified majority of them, calculated by analogy with the relevant provisions of the Treaties on which the European Union is founded, without taking into account the position of the Contracting Party concerned, is opposed to the decision proposed or recommended.

[hatrickpatrick]

You already know my view Scoffy but I may as well chip in here: If it involves giving a body outside the state of Ireland to override voters inside the state of Ireland in any way, I'll be rejecting it.

It appears to fit this criteria at first glance, however I haven't yet researched it so I won't commit yet to either a yes or a no.

Incidentally, is there a link where I could read the treaty, or an unbiased, neutral summary of what it entails, point by point?

[RichardAnd]

It's been a long time since I've had to read legal prose but I would translate quote into clearer English thus:


The state has permission to give formal consent to the treaty known as the Fiscal Treaty. Nothing in the constitution can be used to invalidate any measure taken by the state as a result of the said treaty or any measures undertaken by organisations active under the patronage of the state in regards to the treath.


That's my reading of it but I'm open to correction.

[Scofflaw]

Originally Posted by hatrickpatrick

You already know my view Scoffy but I may as well chip in here: If it involves giving a body outside the state of Ireland to override voters inside the state of Ireland in any way, I'll be rejecting it.

Since it entails a limit on the ability of the government to go into deficit - and that is perhaps something people might want to vote for - then I guess it does so. On the other hand, you might consider that we're already signed up to almost exactly the same set of fiscal rules elsewhere.

Originally Posted by hatrickpatrick

It appears to fit this criteria at first glance, however I haven't yet researched it so I won't commit yet to either a yes or a no.

Incidentally, is there a link where I could read the treaty, or an unbiased, neutral summary of what it entails, point by point?

http://www.european-council.europa.e...087/treaty.pdf

It's not long!

cordially,
Scofflaw

[Scofflaw]

Originally Posted by Dirk Gently

that wouldnt be as bad as my reading of it as it at least leaves a degree of accountability. It looks to me like carte blanche is being given to europe, over the heads of our own government.

Article 7 in particular is worrying

Actually, that is a good point and a genuine concern. Coming back to BlaasForRafa's idea about abolishing child benefit - that's not something which is feasible under the ordinary operation of the Treaty, but is feasible under this clause. In other words, in the deficit mechanism it is possible for the Commission to make "proposals or recommendations" which we are obliged to support unless there's a blocking majority against them.

Such "proposals or recommendations" would presumably then be considered to be obligations in themselves, and therefore exempt from constitutional challenge.

cordially,
Scofflaw

[Dirk Gently]

The first thing that sprung to mind was tax sovereignty but yeah, it could be used to impose anything really unless we managed to convince a majority to back us. We're really being asked to take a gamble on an unknown and hope it's preferable to not being excluded from future EU bailouts.

[Eliot Rosewater]

Originally Posted by Dirk Gently

We're really being asked to take a gamble on an unknown and hope it's preferable to not being excluded from future EU bailouts.

That's perhaps true, but then the alternative isn't well determined, either. That is, your concern rests on the unpredictably of the usage of the Treaty by the European government -- however, can one really suggest that the Irish government is any more predictable and/or "better"?

Obviously the Irish government is more accountable in terms of relying more directly on the electorate for their position, but historical evidence suggest that this doesn't ensure that ultimately disastrous economic policies are not followed. The evidence here is the current crisis which was caused in a large way by the low-tax high-spend policies promoted by the 3 major parties. You're hinting that we can't trust the commission -- but should those fears be placed closer to home, too?

One thing I like about the EU (from my limited knowledge) is its "coldness". This treaty isn't here to help some parliamentarians keep their seats, or to shmoozy a few special interests. It is here because running large deficits has a demonstrably negative effect on the long term stability of the Eurozone, and something is needed to safeguard that. If the commission makes fiscal recommendations it probably won't have ideological factors (such as an opposition to child welfare, for instance) in mind, but will only be interested in satisfying the cold mathematical demands of a stable economic policy.

[Kinski]

Originally Posted by Eliot Rosewater

One thing I like about the EU (from my limited knowledge) is its "coldness". This treaty isn't here to help some parliamentarians keep their seats, or to shmoozy a few special interests. It is here because running large deficits has a demonstrably negative effect on the long term stability of the Eurozone, and something is needed to safeguard that. If the commission makes fiscal recommendations it probably won't have ideological factors (such as an opposition to child welfare, for instance) in mind, but will only be interested in satisfying the cold mathematical demands of a stable economic policy.

You think that the EU Commission is free from ideological commitments, and immune from the appeals of specific interest groups? And you know that the various EU govts appoint its members, right?