Libertas and the Referendum Bill

“Referendum bill makes Irish Constitution completely subject to EU”, Libertas.

When Ireland joined the European Economic Community we needed to amend the constitution. It’s been amended a further four times when the European Community/European Union treaties have been subject to significant changes. The main reason for this is that when EU law conflicts with Irish law (including our constitution), EU law prevails. This is a necessary and essential part of the European Union that simple wouldn’t exist or function otherwise. This supremacy of European Union law guarantees that member states can't just opt-out of those measures which they find inconvenient or benefit from their failure to implement measures that other member states have implemented. Supremacy is our way of knowing that other member states are obliged to enforce the same EU laws that we do. And vica-à-versa.

Back in 1972 the Third Amendment inserted the following sentence into the constitution:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”

This sentence was slightly changed by the Maastricht Treaty referendum to deal with the creation of the European Union and would be subject to similar changes relating to the EU’s structure under Lisbon. If the Lisbon Treaty referendum is passed, the Constitution will read as follows:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of membership of the European Union referred to in subsection 10° of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions 25 thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.”

(Actually this is only the draft referendum bill. The bill is at the time of writing still before Dáil Eireann.)

Libertas presents all this as a completely new innovation which subjects our Constitution to the EU. The Third Amendment was enacted 35 years ago. It hasn't brought the state to an end, rendered the Constitution useless, or amending it pointless. The mere fact that the Dáil are currently debating the Twenty-Eighth Amendment of the Constitution Bill gives quite a clear impression that debate surrounding our Constitution has if nothing else be livelier in the last thirty-five years than before.

Neither was the Supreme court deterred from requiring a referendum to ratify the Single European Act some fifteen years after the Third Amendment, at a point when — we must be supposed to believe — the Irish Constitution had already become “completely subject” to the European Union.

In short, a yes vote in the upcoming referendum won't change, in any way whatsoever, the relationship between Irish and EU law.