Statement by the Government on the publication of the Twenty-sixth Amendment to the Constitution Bill, 2002
The Government believe that it is in the Irish people's national and personal interest that Ireland remain a fully engaged member of the enlarged European Union. Ratification of the Nice Treaty is therefore essential.
The Government has today published the Twenty-sixth Amendment of the Constitution Bill, 2002. Following Oireachtas consideration of the Bill in early September, the Government intends to hold a referendum later in the autumn.
The Constitutional amendment proposed in the Bill enables the State to ratify the Treaty of Nice, which provides the legal and institutional framework for the enlargement of the European Union. It will also allow the State to take part, if the Government so decides and subject in each case to the prior approval of both Houses of the Oireachtas, in enhanced cooperation with groups of other Member States as provided for by the Treaty. These elements of the amendment are in line with the Constitutional provisions allowing for ratification of previous EU Treaties.
The proposed amendment, if approved by the people, will also have the effect of preventing the State from adopting a decision taken by the European Council on the establishment of a common defence in accordance with Article 17.1 of the Treaty on European Union, (as set out in Article 1.2 of the Treaty of Nice), where that common defence would include the State. The insertion of this provision in the Constitution, which involves a significant change from the last Nice referendum, guarantees that Ireland could not participate in such a common defence without further amendment to the Constitution. That amendment could only be made if the Irish people vote in favour of it at a future referendum.
This gives constitutional effect to the solemn commitment in the National Declaration by Ireland at Seville that a referendum would be held in Ireland on the adoption of decision taken by the EU to move to a common defence. This commitment has been the position of successive Irish Governments.
The Seville Declarations clarified that there was nothing in the Treaty of Nice or previous Treaties that posed a threat to Ireland's traditional policy of military neutrality. In the proposed amendment to the Constitution published today, the Government is putting it beyond doubt that any future involvement by Ireland in a common defence would be for the people to decide in a referendum. It is now time to move on to the real issues at stake in the ratification of the Nice Treaty: enlargement and maintaining Ireland's position in Europe, which is crucial to our social and economic well-being.
The Government strongly believes that ratification of the Treaty of Nice is in the interests of Ireland, of the European Union as a whole, and of the countries which are seeking to join. In the period since last year's referendum, the Government has sought across a wide range of issues to address the concerns of the people about the Treaty of Nice and the European Union as a whole. An important aspect of this is the enhancement of democratic accountability through the introduction of improved arrangements for Oireachtas scrutiny of EU business, which will begin to operate from next Monday. The newly-formed Select Committee on European Affairs will play a key role in these new arrangements. The Government is committed to an open, transparent and accountable system of parliamentary scrutiny. The Select Committee will examine putting these new scrutiny arrangements on a legislative footing when the Dail returns in September. Moreover, in the period ahead the Government will continue to work to shape the future of the Union in ways which reflect Ireland's values and interests.
The Government believes that it is its duty, in the national interest, to ask the people to reflect carefully on all of the issues involved. It will work to ensure a full and well-informed debate, including through the early establishment of the Referendum Commission, which the publication of this Bill makes possible.
The Government is confident that the people will in the autumn decide that Ireland must remain at the heart of the European Union because first and foremost it is in our interests and because it will allow enlargement to proceed through the ratification of Nice.
Note for the Editors on sub-section 9
1. Article 1.2 of the Treaty of Nice contains a revision of Article 17 of the Treaty on European Union. The first paragraph of this Article reads as follows:
“The common foreign and security policy shall include all questions relating to the security of the Union, including the progressive framing of a common defence policy, which might lead to a common defence, should the European Council so decide. It shall in that case recommend to the Member states the adoption of such a decision in accordance with their respective constitutional requirements.”
2. This provision is unchanged from that contained in the Treaty of Amsterdam, which was approved by the Irish people in a referendum, except that it omits a reference to the role of the Western European Union (WEU) in the framing of the defence aspects of the common foreign and security policy (CFSP).
3. The term “common defence” employed in Article 17 of the Treaty on European Union, is taken as implying a common defence arrangement involving a binding mutual defence commitment. This can be understood from the second paragraph of Article 17, which refers to “certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO)”.
4. The arrangement foreseen under Article 17 is that any decision to move to a common defence would be taken by the European Council, which acts by consensus and on which all Member States are represented. No decision to move to a common defence could be taken without Ireland's agreement in the European Council.
5. If the European Council were to take such a decision, it would then have to be adopted by the Member States in accordance with their respective constitutional requirements. In effect, the Member States would have to ratify the decision of the European Council in the same way as they would an EU treaty.
6. The Constitutional amendment put forward by the Government, if approved by the people, would have the effect of preventing Ireland from adopting any decision by the European Council to establish a common defence involving Ireland. In order for Ireland to join a common defence, the people would first have to vote to delete or amend this Constitutional prohibition. This would give Constitutional effect to the political commitment contained in the National Declaration, which was itself a confirmation of undertakings given by successive Irish Governments.
7. What the proposed amendment will not do is to prevent the Oireachtas adopting a decision taken by the European Council to establish a common defence which does not include Ireland. While no decision to establish a common defence can be taken in the European Council without Ireland's agreement, it has never been Ireland's position that we would seek to block the ambitions of other Member States to establish common defence arrangements among themselves in circumstances where Ireland was not ready to participate, as long as these arrangements would not prejudice Ireland's national interests. However, there is no prospect of a group of Member States establishing an EU common defence without the agreement of all Member States as the Treaty of Nice explicitly prohibits enhanced cooperation in matters having military or defence implications.
8. The situation which would arise if Ireland were to agree to the establishment of a common EU defence in which Ireland did not participate would be similar to that which occurred in relation to the creation of the Euro which was approved by all 15 Member States, even though three Member States decided not to adopt the common currency. Those Member States which opted out (UK, Sweden and Denmark) have all announced their intention to hold a referendum before joining the Euro.