Slugger O'Toole

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Is Crotty killing off any sane domestic consideration of Irish foreign policy?

Fri 3 February 2012, 2:25pm

Before the landmark Crotty vs the Taoiseach judgement in 1987, the Irish Constitution had amassed nine amendments in the previous fifty years of its existence. In the twenty five years since it has scored another seventeen. Some of those were responses to the massive social changes the country has undergone in those years.

Three originate from reversals of previously negative decisions over the very sorts of treaties Anthony Crotty originally hoped to stymie, and a fourth though approved is still awaiting enactment. Every other European treaty has failed to fall at the hurdle. In other words, with regard to Foreign Policy in this recursive reference to the people, the government always win.

I recently heard of a study of a number of otherwise similar Swiss cantons, which found a rate of happiness marginally higher in those where the relied more heavily on plebiscites than those which didn’t. It doesn’t mean that referenda make for a happier demos, but perhaps people are happier where their sense of wider agency is tangible than where they are largely ignored.

The question is what sort of agency do referenda offer? Paul Evans has previously warned of the dangers of simplification posed by the Referendum mechanism. It does make some sense at the constitutional level, as in the Scottish situation where there is anything up to three years to frame the problem and the more thoroughly explore what the options mean on a human scale:

Paul notes quite a long list of problems:

  • Time and time again, the public don’t answer the question they’ve been asked. They use one question to send an unrelated message to an unpopular government.
  • Referendums privilege the weight of opinion (in numbers) over the weight of arguments.
  • By making policy questions explicit, as Cass Sunstein illustrates at length, youpolarise the arguments instead of promoting a rich debate and useful complex legislative responses.
  • People who don’t have the capacity to engage in the debate on a given issue are effectively disenfranchised – especially when the referendum makes decisions that could be taken by elected representatives who would deliberate on everyone’s behalf and defend their decisions at subsequent elections. The low-paid, people who work long hours, people with enough problems of their own, people who don’t have the confidence to express their views or the opportunity to discuss them become unrepresented
  • In referendums, power is exercised without responsibility. No-one is under any pressure to obey The General Will or to ensure that a policy is actually in the long-term public interest.
  • That last is one of the bugbears of many in the constitutional reform lobby, though avoiding the calling referenda is by no means a guarantee that long term policies are intelligently set. A few years back Gavin Barrett wrote on the ongoing controversy that this habit of calling referenda on any piece of European legislation has become a habit than acting in accordance with precedent:

    The responsibility for Ireland’s unique record in holding referendums on European issues is usually attributed to the 1987 Supreme Court decision in Crotty v. An Taoiseach. The majority ruling in Crotty gave an extraordinarily broad (and, it must be said, extraordinarily unconvincing) interpretation of the description in Article 5 of the Constitution of Ireland as a ‘sovereign’ state. Although there is far more to Crotty than this, it was on the basis of this interpretation that the Court held ratification of the rather innocuous foreign policy provisions of the 1986 Single European Act unconstitutional, effectively forcing the then Government to hold a referendum before it could ratify it.

     Crotty started a trend. Since Crotty, wary Irish Governments have unvaryingly made every major EU Treaty the subject of a constitutional amendment (and referendum), thus fireproofing each successive Treaty’s ratification and incorporation against any constitutional challenge. However, notwithstanding the almost monotonous regularity with which Irish referendums on European Treaties have subsequently been held (with no less than six in the last 21 years), the supposed legal requirement to have a referendum post-Crotty is much less cut and dried than is sometimes thought. It is far from clear that the application of Crotty would invalidate the ratification even of the entirety of the Lisbon Treaty without a referendum. Current suggestions to ratify only part of the Lisbon Treaty without a referendum would be even less likely to fall foul of Constitutional censure. It is even unclear whether the present Supreme Court would even follow all of its own reasoning in Crotty (at least insofar as its finding concerning sovereignty is concerned).

    Sovereignty is probably the most undercooked dish in the Irish polity. If there is a problem with this recent convention of submitting anything remotely sombre regarding the Irish state’s relationship to the European Union to the will the of the people is fine. But what use is it if every time they are asked again they just change their mind?

    In research, if you get confused and messy answers, the first place you look is to the question you asked. The major questions at the centre of these techno referendums are nearly always obscured by reference to an inscrutable international treaty, that very few people in the country actually understand. A battle of the white coated experts ensues.

    So that every time someone shouts: “Ref-er-end-um!” the cynicism deepens. Something has to give.

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    Comments (13)

    1. Theres some excellent points there.
      As you yourself recognise Irish life (pre Crotty) is very different to Irish life (post Crotty) so its inevitable that the country will be asked to vote more often.
      Basically Ireland to 1973 had been stagnant for 50 years………and really since then it has been hard to catch breath.
      In Britain the notion of a Referendum is looked thru a prism and considered “unusual” but we have to note its the norm in the Republic and the expected norm.
      We cant rely on the fact that the people getting the wrong answer is good enough reason to dispense witha Referendum.

      Getting it wrong? Well can the people get it wrong? Is there a right and wrong answer. As any counsellor would say opinions are neither right or wrong.
      Are people entitled to use a Referendum as an opinion on the Government of the Day……..or the Political Class generally?
      I say that they are.
      They are after all entitled to vote differently in a mid term election than in a General Election. We cant dispense with bye-elections.
      To some extent our opinions on Referendum (da) is based on whether we are at ease with them……AND on specifics such as the “sovreignty” issue on whether the answer is to our liking.
      Our own Referendum (da) prove the point. As revcently as May I voted No to AV……merely for the sheer joy of opposing the political class. Was it the wrong answer?

      But didnt we get the Good Friday Agreement “wrong”?
      The political class urged a Yes vote……..but surely we should all have realised that the hotch potch of contradictory info was a wish list which made little sense. Actual study SHOULD have rejected it.
      But surely the question had to be asked.
      And sometimes the wrong answer is the only acceptable one.

      What do you think?
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    2. Alias (profile) says:

      There are a few ‘untruths’ afoot in such debates, and usefully proffered by those of a statist mentality or whose ulterior agenda is to undermine the sovereignty of the Irish nation.

      The first one is that referenda are too complex for the public, and therefore they shouldn’t be bothered with such matters.

      Justice Barrington (a notorious europhile), proffered this view very succinctly in Coughlan v. Broadcasting Complaints Commission:

      “The people are the ultimate sovereign but there is no constitutional device which will ensure that their ultimate decision will be infallible or even that it will be prudent, just or wise. The most we can hope for in relation to any sovereign, including the sovereign people, is that before making its decision it will be well informed and well advised. In this context to play down, or neutralise, the role of political leaders in favour of committed amateurs would be, to say the least, unwise.”

      However, where is the evidence that the political leaders have performed any better in such decisions than the “committed amateurs”? Indeed, in relation to EU referenda, the will of the political leaders always took precedence over the will of the public (in that the ‘undesired’ result is ignored and another referendum is held until the desired result is returned). Who but an idiot now thinks that joining the euro was a great idea or that the political leaders “infallible or even… prudent, just or wise” when they provided a retrospective gaurantee for eurosystem debts? If the people are unwise, then they cannot be trusted to elect wise leaders either, so the argument is bogus.

      In reality, people are required to endorse a vast array of party policies when they select one government over the alternative. They no more read party manidestoes than they read treaties, so why is it never claimed that a general election result is invalid because, as is claimed with EU referendum results, that people id not properly understand the issues? Indeed, why is there no enquiry about whether people properly understood the issues when they voted for a second time and returned the ‘correct’ result the second time around? It is falsely presented as a ‘pick-and-choose’ option when, in reality, it is always a binary option – as are general elections.

      What the europhiles try to conflate is that a nation deciding a policy the same thing as deciding that a policy should no longer be decided by a nation. They are profoundly different. In, for example, a non-EU referendum on divorce, the nation may decide that policy, but on EU referendum, what is being asked of the nation is that it gives up its right to decide that policy.

      The government has the right to exercise the sovereignty that it is granted by the people in the Constitution but it does not have the right to give that sovereignty away. As Justice J. Hederman expressed it in Crotty: “The State’s organs cannot contract…in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers – not the disposers of them.”

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    3. Alias (profile) says:

      Put more simply: the people own their sovereignty, not the government. They elect the government to exercise it on their behalf, not to give it away. As the people own it, not the state, the government cannot give it away without the consent of those who do own it.

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    4. Alias (profile) says:

      There are two main reasons why referendums are necessary.

      Firstly, the core purpose of a written constitution is that is protects the rights of citizens from abuse of power by the government and its institutions. This protection from the state is rendered null and void if the government can alter the constitution at its will. Therefore, it is essential that only the people may alter the constitution.

      Secondly, a situation may arise where there is no precedent for government to act and where its considered action may profoundly affect the welfare of the people.

      Such a situation would be, for example, when the government decided that it was going to force its citizens to assume responsibility for hundreds of billions of debts that belonged to French and German banks, and that it was going to undertake this action for the purpose of for the political purpose of protecting a foreign currency.

      The people had a right to decide whether or not they wanted to each dedicate several hundred thousand of their incomes in the form of taxes for that purpose or whether they wanted to save that money for their retirement or spend it in a manner of their own choosing.

      The government has no legitimate right to claim ownership of other peoples incomes for the purpose it claimed them, and although the Constitution does not proscribe this action (its authors never contemplated it), it is a clear example of an exceptional circumstance which could only be deemed legitimate if sanctioned by the nation in a referendum.

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    5. From law school (pre 1987) the teaching was that the nature of the Irish constitution was such that an international treaty effectively changed the nature of the state’s sovereign relationships, and with sovereignty defined by constitution, any treaty would have to be endorsed by referendum. Crotty only confirmed what was presumed.

      On the number of referendums, would suggest that the pace of change in the Irish State, socially, economically, and in its relationship with others (in particular Eur) it is hardly surprising there are more post-1987.

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    6. wee buns (profile) says:

      Interesting Mick, the bent of the question:
      ”Is Crotty killing off any sane domestic consideration of Irish foreign policy?”

      Shift the axis to:
      ”Is the EU killing off any sane consideration of Irish sovereignty?”

      When do Governments ever ‘promote a rich debate and useful complex legislative responses’ ??

      Lisbon 2 was a classic :
      - No matter who you vote for, the government always wins -

      Yet Crotty is all we’ve got, despite the ease with which referenda are abused along the lines stated in the essay.

      Even so – each occasion presents an opportunity to inform, educate, meet, discuss – vote.

      It’s the ‘journey’ that still counts, as well as the outcome.
      The hard work falls to small parties, people’s organizations & Independents. To win the day is of course an outside chance given the machinations of government combined with the sophistry of EU, but successive referenda reveal that the electorate is as malleable as it is volatile as it is capable of understanding – and therefore open to… LOTS.

      To say that the EU has harnessed Crotty v Taoiseach as a tool of its own ends, does not cancel out that referenda exercise a valued right.

      The most pertinent block is simply the lack of confidence on behalf of the people in the extent of people’s collective power, a point that Crotty rightly argued in that EU membership is in direct contradiction with the ethos of a small ex colony.

      Until another Crotty comes along, to raise the bar, lets keep the home fires burning.

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    7. Neville Bagnall (profile) says:

      The problems with direct democracy are well known and Paul’s arguments are well founded. If nothing else the history of referenda results should be a warning to all those who think the solution to bad governance is more direct democracy.

      But it doesn’t really matter.

      We assert that the People are Sovereign and only the people can change the Constitution. EU Treaties are part of our Constitutional Law because they grant constitutional roles to institutions outside those delineated in an Bunreacht.

      I think, given the size and broad homogeneity of the country, that is a reasonable approach to take to constitutional change. I don’t think indirection would really help and given my diagnosis below would probably be even more damaging.

      The fundamental problem that is developing is not so much the mechanisms we use as the developing lack of trust in authority figures, the confusion of celebrity with expertise and information overload.

      Those are problems that are not restricted to referenda campaigns, are not unjustifiable and are not specific to Ireland.

      Democracy requires that the political class trust the demos and that the demos trust the political class. That relationship has broken down in both directions and both sides share in the blame. How do you return trust to a relationship where its been lost?

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    8. Alias (profile) says:

      “Is Crotty killing off any sane domestic consideration of Irish foreign policy?”

      I’ve read the article twice but I still don’t see the connection between it and its headline.

      According to the Irish Department of Foreign Affairs & Trade “EU membership is pivotal to Irish Government policy. It is a central framework within which the Government pursues its foreign policy objectives. Ireland’s membership of the European Union is rooted in an understanding that the Union is the cornerstone of political and economic stability in Europe.”

      Do the Irish people know that such subservience to the EU in foreign policy matters is a direct consequence of their ratification (despite Crotty’s best efforts) of The Single European Act? Do they even care? No, because foreign policy discussion is not a popular topic of conversation in any peaceful society. Would they suddenly start discussing it if it was not dictated by the EU and could be determined instead by the democratic will? But as they cannot determine it, there is little point in them bothering to discuss it.

      True, the people do have a veto over any decision by a europhile government to surrender Ireland’s neutrality to the EU and over any decision by a europhile government to force Ireland to join an emergent EU army. The Crotty judgement makes this explicit.

      This veto is what so alarms the europhiles, and it is why they detest the Crotty judgement. It stands in the way of their quisling agenda to surrender the last remants of Irish sovereignty to the EU. Hence, we are seeing attempts to undermine the judgement and wishful thinking that the Supreme Court might reconsider it.

      Now, as a Zionist and an Irish nationalist, I have mixed feelings about how heavily circumscribed Ireland’s foreign policy is under EU rule. I have no doubt that Ireland – being the most rabidly anti-Israeli of states – would dearly like to adopt a policy of sanctions and delegitimisation towards Isreal but it is unable to do so because it must adopt the common EU policy instead. If it had the sovereignty to do otherwise, it would most certainly do so.

      Perhaps EU rule and its suppression of national wills isn’t so bad afterall…

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    9. [...] ably demonstrates one of the abiding problems of letting the Crotty judgement dictate important foreign policy decisions. And it may explain why the cabinet is toying with two different time scales for the [...]

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    10. Mick Fealty (profile) says:

      Wee buns,

      Only now have I seen your rhetorical riposte… To which I might inquire (notwithstanding the avarice of the Eurocrats for binding us all ever closer with the minimum of democratic asset), when precisely was this golden age when Ireland’s sovereignty was ever clearly understood?

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    11. wee buns (profile) says:

      ”When precisely was this golden age when Ireland’s sovereignty was ever clearly understood?”

      When precisely – and by whom precisely?

      The answer is = not by all of the people all of the time – but by some of the people some of the time.
      By enough of the understanding clearly people .. Crotty etc … at certain junctures in (lets stick to) recent history.

      To quibble with the ‘golden age’ reference – I never stated there was one – but here’s a direct question for you – how come when Irish people make efforts towards self determination they are inevitably branded as ‘idealistic’?

      Confidence is the big issue here.

      If a golden age exists it is now because Crotty and others have ensured we take the journey of questioning.

      Luke Flanagan today described our straightjacket of debt and austerity, as a jumper than ‘needs to be un-knit’ .

      That’s the ‘golden age’ for me – transformative power.

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    12. Alias (profile) says:

      It reminds of you John Major ‘golden age that never existed but which is now imagined.’ That particular influence might be true for qualitative values but is not true for quantitatives such as sovereignty. We know sovereignty what was given away and when it was given away, and we know what the dismal consequences of that surrender are. The nation is post-sovereign in regard to austerity and bail-outs of eurosystem banks. It might not like bailing-out French and German bondholders but it foolishly gave its sovereignty in that regard away on the specific date of 18 June 1992.

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    13. wee buns (profile) says:

      Even Fintan, who we thought had hit the pit bottom of disillusion, has come out against the treaty:

      http://www.irishtimes.com/newspaper/opinion/2012/0306/1224312849769.html

      Also Higgins in a recent interview with Al Jezeera:

      ”Each EU state faces difficulties to provide opportunities for its citizens, he said, but “it can’t leave the welfare of its citizens to the outcomes of markets assumed to be rational, but which are highly speculative and irrational”.

      http://www.irishtimes.com/newspaper/ireland/2012/0302/1224312634960.html
      Perhaps the nature of the ESM Treaty has now been altered due to it’s being referenced in and linked to the constitution-breaching Fiscal Stability Treaty.
      What previous amendment authorised the Stability Mechanism

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