The Referendum Bill

The Government's just published referendum bill is, predictably enough, not what I'd really like, but then I don't exactly get much input on these things. Like previous European Union/Community related amendments, the aim is to maximise what the Government can do in Brussels. The only restrictions being the prohibition on the formation of a common defence (a novelty introduced by the second Nice referendum) and a requirement that the Government seek the prior approval of the Dáil and Senate before adopting the more discretionary elements of the EU Treaties.

I fail to understand why, when the Government always insist that they're not going to give up our vetoes under taxation and foreign policy, they don't include these areas along with common defence as areas which would require further recourse to the people. This would be an altogether simple way of reassuring people over things which aren't going to happen anyway. (I'm preparing my don't-tell-me-I-didn't-warn-you speech.)

As with most of the bills which are about to be guillotined through Parliament, there will be remarkably little time for debate on the merits of the bill or properly consider amendments.

Anyway, here are the relevant parts of Article 29.4 of the Irish Constitution as it would be if the Government's referendum bill is passed this Autumn, along with some annotations.

"3° The State may become a member of the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957).

[ed. European Atomic Energy Community or Euratom continues its separate from, but associated status, with the EU. The Euratom Treaty is, other than essentially procedural amendments left as is.]

4° Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples. [ed. A novel provision]

5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 ("Treaty of Lisbon"), and may be a member of the European Union established by virtue of that Treaty.

[ed. Lisbon merges the hitherto separate legal entities of the European Union and the European Community, thereby creating a "new" European Union. The "new" EU is nonetheless pretty much the same as the old EU, save for the changes introduced by Lisbon itself.]

6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5 of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—

i the said European Union or the European Atomic Energy Community, or by institutions thereof,

ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or

iii bodies competent under the treaties referred to in this section,

from having the force of law in the State.

[ed. The language of sub-section 6 essentially repeats that introduced by the Third Amendment as enacted in 1972.]

7° The State may exercise the options or discretions—

[ed. This relates to areas which are not really "necessitated" by EU membership, but which the State can opt-in or opt-out of. A similar provision was first inserted by the Amsterdam amendment.]

i to which Article 20 of the Treaty on European Union relating to enhanced cooperation applies,

ii under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), [ed. This relates to our flexible opt-in/opt-out to the Schengen acquis.] and

iii under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State,

[ed. Another flexible opt-in/opt-out but this time relating the EU's Area of Freedom, Security and Justice, under which the bulk of Schengen Area rules are now made. This paragraph would also allow the State to join the Schengen Area.]

but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

8° The State may agree to the decisions, regulations or other acts—

i under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity,

ii under those treaties authorising the adoption of the ordinary legislative procedure, and

iii under subparagraph (d) of Article 82.2, the third subparagraph of Article 83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice,

[ed. These relate to the harmonisation of criminal law (both substantive and procedural), including the ability to expand the areas of criminal law subject to possible harmonisation, and the establishment of a European Public Prosecutor. These are areas under the flexible opt-in/opt-out arrangements under the Area of Freedom, Security and Justice.]

but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

9° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State. [ed. this was inserted by the second Nice referendum.]"