Would the Treaty be inserted in our Constitution?
This is a claim we’ve heard from the No side. What we are doing is allowing the state to ratify the Treaty, in the same manner as every previous Treaty. It was only last night when discussing this socially that the significance of their claim, and how it diverges from the actual amendment, became clear to me.
Let’s take Article 29.4 as it stands:
1° The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government. 2° For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern. 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). 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. 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. 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—
- the said European Union or the European Atomic Energy Community, or institutions thereof,
- the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or
- bodies competent under the treaties referred to in this section,
from having the force of law in the State.
7° The State may exercise the options or discretions—
- to which Article 20 of the Treaty on European relating to enhanced cooperation applies,
- 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), and
- 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, 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—
- 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,
- under those treaties authorising the adoption of the ordinary legislative procedure, and
- 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,
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
A Yes vote would add a new subsection 10°:
10° The State may ratify the Treaty on Stability, Co-ordination 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 follows the pattern of previous amendments allowing the state to ratify European Treaties (previous amendments allowed the state to ratify the Treaties of Paris, Rome, Maastricht, Amsterdam, Nice and the Single European Act were superseded by the Lisbon Treaty). The Treaty itself does not become part of the Constitution of Ireland; neither do its specific terms about budgetary constraints.
Take the Lisbon Treaty for example. In 2009, after the referendum, the Twenty-Eighth Amendment of the Constitution Act became law. This brought Article 29.4 to where it stands above. But had the government done nothing else, we would not be bound by the Lisbon Treaty. It was only when the European Union Act 2009 was subsequently passed that the Lisbon Treaty became part of Irish law.
It will very much be in a similar manner if the amendment passes the referendum on 31st May.