Free, free . . . a nation once again. Or that’s what we are told about the imminent lifting of the shackles of supervision from the troika. Even the Taoiseach has spoken glowingly of the day we get our sovereignty back.
All guff.
Such talk presupposes that we were somehow gloriously independent in the first place. And that we will be restored to that blissful state, to being once again sole masters of our fate. No mention, mind you, of the new EU economic governance provisions which will see troika-like monitoring of budgets henceforth, and which came into force on Thursday.
“Sovereign” is one of the most abused words in the Irish political lexicon, a sacred cow – being “for” sovereignty is like being against sin – and most cherished because it somehow represents an expression of our historic struggle for independence, our very being.
But in a globalised, interdependent world the nature of sovereignty has changed profoundly – it is as complex, overlapping and multilayered as that related, also abused, concept of “identity”.
The pooling of sovereignty in organisations like the EU is not a zero-sum game in which any gain by Europe is necessarily a loss to nation states – collective action by the union creates possibilities, new sovereignty, where none existed before at state level.
Economic sovereignty was the subject yesterday of a stimulating discussion at the Institute for International and European Affairs in Dublin that moved quickly from a discussion of the necessity and inevitability of further European economic integration and the pooling of sovereignty to one about the relative merits of plebiscitory versus representative democracy.
The connection, you may ask? The definition of sovereignty is at the heart of the Crotty Supreme Court judgment on the Single European Act treaty and which has forced – or is alleged to have forced– the State to hold as many as nine referendums on seven EU treaties, a plebiscitory zeal that has bewildered our allies and led to serious Europe-wide delays in treaty ratification.
Trinity economist Prof John O’Hagan, argues that, in ruling in the recent Pringle case, the Supreme Court has explored a new more nuanced appreciation of the nature of sovereignty. In doing so, he says, it has signalled its willingness to give government a greater margin of discretion in signing international treaties, one which significantly changes the circumstances in which a popular referendum may be required.
Mr Justice Frank Clarke ruled that "The limit on the discretion which the government holds arises where the relevant treaty involves Ireland in committing itself to undefined policies not specified in the treaty and in circumstances where those policies, which Ireland will be required to support, are to be determined not by the government but by institutions or bodies specified in the treaty."
“The wording in Clarke J is clear,” O’Hagan argues, “it must involve a commitment to undefined policies and where such policies subsequently are to be determined not by the government.
“The corollary of this then seems clear: where policies arising from the treaty change are defined there is no need for a referendum. There is also possibly no need for a referendum even where there are commitments to undefined policies but where the ultimate decision on these undefined policies must have the subsequent approval of the Irish parliament.”
He is not the first to argue that the Crotty judgment is less inhibiting than cautious governments have tended to see it, and that treaties like Nice which gave the EU no extra legal competences did not legally require a referendum. And yesterday former attorney general and Goldman Sachs chairman Peter Sutherland contended that the court had erred in Crotty because it did not meet its own standard of showing the SEA changed the "essential scope or objectives" of the European Community. Similarly, he argued, foreseeable treaty changes needed to pave the way for monetary union, should not require referendums because they too would not fundamentally change the character of the EU.
In the end, however, the decision to hold referendums in recent years has been largely political, driven by the fear that No campaigners, in the event of a successful court challenge, would be able to portray the government as undemocratic and determined to railroad through another attack on our sovereignty – not exactly the most propitious start to a campaign. Making the case to those engaged in a plebiscite that plebiscitory democracy is perhaps not the only or best model of democracy is an uphill climb. Not surprisingly politicians play safe.
There was broad support at the meeting, however, for Minister for Justice Alan Shatter’s idea that the Government should be able to send treaties or legislation to the Supreme Court for testing ahead of a poll.
psmyth@irishtimes.com
