Sunday 19 January 2020

'Nothing to stop State bypassing electorate' on EU law

Dearbhail McDonald Legal Editor

ONE of the country's most senior judges has said that the Constitution could be changed to allow the Government to pass EU treaties without asking voters in referendums.

Supreme Court judge Mr Justice Frank Clarke said there would be no formal legal difficulty in crafting a constitutional amendment that would not require the Government to go back to the people every time there is a change in European treaties or one involving the transfer of sovereignty.

But Mr Justice Clarke, pictured, said the electorate would probably reject such a proposal.

He told the 20th annual Burren Law School that although this is "legally doable", it was unlikely to be politically possible.

This is because the Irish "are not overly keen on giving away the power which they hold under the Constitution to any institutions, be they Irish or European".

Mr Justice Clarke said that whatever views people hold about our position in the EU, our relationship with Europe now forms a material part of our identity.


Justice Minister Alan Shatter has floated the possibility of a new measure to allow the Government to seek permission from the courts to approve EU treaties without the need for referendums.

But Mr Justice Clarke said this may be rejected by the electorate.

"The suspicion must be that any government would have great difficulty in persuading the people to accept such an amendment," Mr Justice Clarke said at the school, which was guest-directed this year by James Hamilton, the former Director of Public Prosecutions (DPP).

Mr Justice Clarke said that Ireland is "almost unique" in that it has a referendum every time we want to change the Constitution.

"Many of the referenda come to define shifts in our identity and the way we feel about ourselves," said Mr Justice Clarke. One of "the most striking things" about Irish identity is a desire to keep the extent of our ceding of sovereignty to European institutions under the control of the people, he added.

Mr Justice Clarke said that it was notable that the only change that has taken place in Irish citizenship law at the constitutional level was designed to exclude rather than include.

"We don't seem perhaps to have incorporated that new expanded view of being Irish into the Constitution," he said.

Irish Independent

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