We don’t need an Irish referendum on Brexit

I’ve seen suggestions in the last week that the result of an Irish referendum might prevent the United Kingdom (UK) from leaving the European Union (EU). The argument is summarized in this piece in The Irish Times.

It’s an argument which relies on two assumptions — first, that the UK’s exit deal will come into force only if approved by the other 27 member states of the EU and, second, that Irish approval will require a constitutional amendment and therefore a referendum. I don’t have much to say about the first assumption. I don’t know whether the Brexit deal needs the unanimous agreement of the remaining member states. I don’t remember reading anything that settles the question one way or the other. On the other hand, I do know that unanimity is required to extend the time for negotiation, if a deal isn’t reached within two years after the UK gives notice of its intention to leave under Article 50. Perhaps it won’t be possible to agree the terms of Brexit, either within that two-year period or any unanimously agreed extension of time. When the time is up, unless the notice under Article 50 has been withdrawn or revoked (assuming that that can be done), the UK will still leave the EU, even without agreed terms of departure. In short, nobody can force the UK to stay in the EU against its will, not even Ireland.

The other leg of the argument is more interesting. It assumes that Ireland couldn’t assent to the Brexit deal without first amending its constitution. This assumption is not justified. In 1986, the Irish government was preparing to ratify the Single European Act without changing the Constitution. Raymond Crotty went to the High Court to try to prevent ratification. Three judges of the High Court refused him the orders he was looking for and Mr Crotty appealed to the Supreme Court, where he won narrowly. The Supreme Court issued an injunction preventing the government from ratifying the Single European Act but in doing so it upheld only one of the plaintiff’s arguments.

It’s worth remembering that the Single European Act made significant changes to the European Communities (as they were then known) and was inevitably going to have a profound effect on the laws of the member states — this was the treaty which laid the foundations for the single market, which the UK is now so anxious to escape from. The Supreme Court held that Title III of the Single European Act, which obliged the member states to cooperate in the formulation of a common defence policy, would have involved an unconstitutional derogation from Ireland’s sovereignty. On that ground only, the Court allowed the appeal and told the government it was not empowered to ratify the Single European Act.

The Plaintiff’s other arguments failed. According to the judgment of the Court, delivered by the Chief Justice, Thomas Finlay, the Third Amendment

… must be construed as an authorisation given to the State not only to join the Communities as they stood in 1973, but also to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objectives of the Communities.

The Chief Justice added

The Community was thus a developing organism with diverse and changing methods for making decisions and an inbuilt and clearly expressed objective of expansion and progress, both in terms of the number of its Member States and in terms of the mechanics to be used in the achievement of its agreed objectives.

So not every amendment to the original treaty requires a constitutional amendment, only those which go beyond the “essential scope or objectives”, which have always included the objective of “expansion and progress”.

Following the Supreme Court decision, the government put a referendum to the Irish electorate, proposing an amendment to the Constitution which would permit ratification of the Single European Act. Though not couched in such terms, this was in effect a referendum on the formulation of a common European defence policy. The amendment was adopted and ratification went ahead.

Presumably because of the government’s embarrassing defeat in the Crotty case, it has become the practice in Ireland to hold a referendum and change the Constitution whenever there’s a change to the EU treaties. In most cases, on the logic of the Crotty case, no constitutional amendment is required but we enact one anyway, just to be on the safe side. These amendments typically take the form of a saving clause, along the lines “nothing in this Constutuion invalidates anything done under the Treaty” in question. This, for example, is the text added to the Consitution in 2012, to make sure that the government had power to ratify the Fiscal treaty:

The State may ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of 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.

This text does not make it clear what (if anything) in the Constitution has changed. What was required before that is no longer required? What was forbidden that is now permitted? It’s impossible to say. Perhaps nothing. As the EU develops, as new treaties are agreed and old ones amended, the Irish Constitution continues to gather accretions of this type, whose meaning is opaque and whose practical effect, import and necessity are all likely to be at best negligible. Provisions of this nature are much better suited to complex, transjurisdictional commercial contracts or technically complex, detailed legislation than they are to the fundamental law of the state. It’s high time we stopped amending the Constitution in this way.

The eventual Brexit deal will provide the perfect opportunity. Nobody yet knows what form that deal will take. Some of us have the greatest difficulty imagining any form it possibly could take. But there’s one thing I’m reasonably confident of: it almost certainly won’t come into conflict in any way with the Irish Constitution. Why would it? So, please, when the time comes, let’s not hold an unnecessary referendum on it.