The legality of what the State proposes in the referendum on May 31 has always been an argument and must now become an issue. In expectation of this being recognised, I attended the meeting in Dublin last Thursday of the National Forum. The four high-profile speakers were Michael McDowell, Eamon O Cuiv, Brian Hayes and Declan Ganley. All gave spirited addresses. None referred to the constitutionality and legal correctness of what is being proposed.
The most significant silence was that of Michael McDowell, a former attorney general who made clear that he would vote 'Yes'. He rejected any federal prospects for Europe and argued that a 'No' vote would put us "in a weaker position" when it will do precisely the opposite. He said nothing about the legal questions.
The State will shortly be putting before us for approval the proposed European Stability Mechanism Treaty, which will be dispatched in the Dail after the less important fiscal compact (TSCG) treaty, to be decided by referendum.
In my view, both treaties are illegal under EU law and are therefore unconstitutional in Ireland. Since the primacy of EU law was agreed in 1972, the Irish Constitution must uphold EU law. We are now proposing the opposite.
Also, we have not yet approved the Article 136 amendment of the main EU treaties, which permits this European Stability Mechanism setting up the permanent €500bn bailout fund for the eurozone. It is therefore not yet part of EU law and the EU treaties and cannot come within the aegis of the EU Court of Justice. Yet they are, ironically, within the competence of the Irish Supreme Court to rule on.
Surprisingly, perhaps, the Irish Supreme Court has not had a chance to look at EU developments for nearly 30 years, nor to lay down lines of division in respect of what limits, if any, there are to further EU integration. The Supreme Court cannot carry out such a review without being asked to do so.
One option would be for President Michael D Higgins to refer the matter to the Supreme Court (when a bill to license our €11bn contribution to the proposed ESM fund comes before him).
Failing this, some public-spirited citizen could bring the matter to the Supreme Court, thus enabling (if such a case succeeded) a constitutional referendum to be held not just on the marginal fiscal compact treaty, but on the existing EU treaties that are being manipulated through the proposed European Stability Mechanism. As we all know, this is in order to bring eurozone finances under the effective control of the German chancellor and the French president.
The eventuality of such a challenge would put the State in a powerful bargaining position, enabling relief on our debts. In effect, Irish voters would hold the rest of the eurozone captive in respect of its permanent €500bn bailout fund. It might even provide an opportunity for Ireland to chart a better way for the eurozone as a whole out of the sovereign debt crisis.
The German and French leaders are running a coach and horses through EU law and the existing EU treaties. They are doing this by misusing the Article 136 authorisation of the ESM to hijack us all. Mr Sarkozy wants a federation for the eurozone (remember, Mr McDowell wants no such federation), and a confederation for the rest of the EU. We don't know what we want and don't care. We just want to be 'good' in the eyes of the French and Germans.
All we see is them making demands on us. We don't know where it will lead. Nor do other countries. Like us, they bow to Ms Merkel and Mr Sarkozy.
Whatever we want, we must work together, not acting either unilaterally or with a selection of other states. Nor should independent states or groups influence or change areas within the competence of the union or directly affect its interests.
This is particularly so as regards the stability of the euro. Member states are not free to act other than in accordance with the terms of the existing treaties and these contain no basis for an initiative to ensure the stability of the euro by means of fiscal assistance to countries with deficit problems. Indeed, there is an express treaty article (Article 125 TFEU), against states taking on the debts of other states.
We therefore need the amendment to Article 136 authorising member states to establish a stability mechanism and then to impose conditions on the granting of assistance. Because of the way the amendment has been introduced, it cannot be taken to modify any existing rule in the treaties Ireland is constitutionally bound to uphold. This leaves Ireland incomparably strong in dictating terms to the eurozone, in particular in respect of the 'no bailout' rule and the constitutional requirement of eurozone unanimity for both the ESM and the fiscal compact rules.
Eurozone states must act unanimously on the ESM and fiscal compact treaties. Yet the opposite is being proposed. The former can come into force if only the eight largest of the 17 eurozone states ratify it. The latter when only 12 of them do so.
Both situations are wrong and put at issue EU integrity in both EU law and EU treaties.
Back to the other speakers, and in particular Eamon O Cuiv, who laid down essential conditions before the referendum. Failing this, vote 'No'. When Declan Ganley rose to speak, he said that Mr O Cuiv had given his speech for him.
Neither of the two men -- the shrewdest politicians in the debate -- were 'No' voters. Yet. But they held out firmly against a 'Yes' vote in the present circumstances, viewing the eurozone terms as feeble because we have placated eurozone authorities endlessly, doing whatever we were told.
We can create an atom bomb of power over the EU, which, adroitly used, could settle the demands laid out by Mr Ganley and Mr O Cuiv and reinforced by Marc Coleman.
They called for the EU to regulate banking, replace non-elected governments such as Italy by elected ones, forget tax harmonisation, adopt an employment-and-growth strategy instead of Berlin-dictated austerity and give the ECB the powers of a normal central bank.
They want democracy, starting with universal suffrage to elect a president (with the commission as the executive arm). The corrupt lobbying system needs reform. Fiscal discipline by governments should not be a strait-jacket but an aid to economic growth. Insolvent financial institutions should be allowed to fail.
Without such targets, and trust and immediacy in their achievement, voting anything but a resounding 'No' is suicidal for Ireland. We also need a referendum on the ESM Treaty. No one said this last Thursday. It was nevertheless, for me, the launch of the referendum campaign in which we face perhaps the most important debate in our history.