Are Sinn Féin’s claims about the treaty accurate?

 

Sinn Féin's Mary-Lou McDonald (Creative Commons - SF)

Sinn Féin during the course of the referendum have made two quite specific claims about the ESM and its relationship to the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union.

Firstly, they claim that Ireland has a veto with respect to establishing the European Stability Mechanism and secondly, that the vote is purely on fiscal discipline measures, and has nothing to do with a European funding mechanism. that is, the ESM.

The veto claim has been made by numerous members of Sinn Féin and can be found in section 6 of their analysis of the treaty. This claim hinges on the ratification, or otherwise of a change to Article 136 of the European Treaties that allows for the establishment of the ESM (although the need for this change is disputed clearly by Gavin Barret and not so clearly by the Department of Finance.)

Sinn Féin believes that not ratifying this change would prevent the ESM from being established.

This claim was disputed by Justice Kevin Feeney, head of the Referendum Commission, as reported by the Irish Times. They wrote:

[Justice Feeney] did say that both article 136 and the ESM treaty remained to be ratified by the Dáil and the Seanad and this would happen after the referendum. Mr Justice Feeney accepted that it was theoretically possible that the Dáil and Seanad could refuse ratification but that was unlikely given the composition of the Oireachtas.

The Department of Finance also disputed that article 136 was required to establish the ESM in the same article:

…the Department of Finance, in a statement yesterday, said the article 136 amendment was not a precondition for the ESM being established.

Since only the change to article 136 requires unanimity, this is the only one that is important from the point of view of a veto. The argument about whether a veto with respect to the ESM exists or not, however politically unlikely, hinges on whether or not this article is required to create it, and this cannot be answered with any certainty either way unless the article is tested in court, irrespective of the claims of either Sinn Féin or the Department of Finance.

The second claim (that Ireland is not voting on funding but rather on fiscal discipline measures) was made by Mary-Lou McDonald on the European Debate on TV3 (38 minutes into the debate.)

Let’s make it very clear to people watching at home: on the 31st of May, you are not being asked to accept, or reject, a European funding mechanism at European level. What you’re being asked is to vote on this particular treaty, which is all about putting the brakes on capacity to borrow and to invest in the economy.

It is true to say that the articles of the treaty concern fiscal rules, however it is not true to say that voting on this treaty does not entail making a decision on a funding mechanism at European level. The following is contained in the preamble:

STRESSING the importance of the Treaty establishing the European Stability Mechanism as an element of the global strategy to strengthen the economic and monetary union and POINTING OUT that the granting of financial assistance in the framework of new programmes under the European Stability Mechanism will be conditional, as of 1 March 2013, on the ratification of this Treaty by the Contracting Party concerned and, as soon as the transposition period referred to in Article 3(2) of this Treaty has expired, on compliance with the requirements of that Article;

Clearly, given that access to the ESM is contingent on ratifying this treaty, not ratifying this treaty would mean denying Ireland access to the ESM. This self-evidently means that the decision is not merely about our capacity to borrow and invest but also about our ability to access funding at a European level.

 

2 comments for “Are Sinn Féin’s claims about the treaty accurate?

  1. helena
    May 13, 2012 at 1:08 pm

    @cmcgovern @talentcoop Thank you I have finished reading and yes I understand your view point completely and it is accurate HOWEVER you exclude the fact that the government agreed to insert this provision back in March that voting No now would exclude us from an ESM second bailout etc and that the Dáil will not vote on the establishment of the ESM until after the 31 May. The government therefore have the power to block the ESM Treaty and demand the withdrawal of this blackmail clause which they agreed to and which would exclude us from the ESM. ESM loans are not guaranteed even if the Austerity Treaty is passed. It will only be given if it is in the interests of the bankers and bondholders in the core euro countries, and at the cost of yet more austerity. I am for a second bailout if it is to help the millions in Europe get back on their feet and not just to help the millionaires.

    Here is the proposed article that will be inserted into Article 29, Section 4, Subsection 10 of the Irish Constitution upon ratification of the Fiscal Compact:

    “The State may ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.”

    Now it doesn’t take a law degree to interpret what this means.

    Here is the first part: “No provision of this (Irish) Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty…”

    This means that our Constitution cannot invalidate any laws enacted, acts done or measures adopted by the state that will be employed to ensure all obligations to the EU are met.
    What “Obligations”? The payback of Odious bank debt perhaps?

    Now here is the second part:

    “No provision of this Constitution … … …prevents laws enacted, acts done or measures adopted by bodies competent under that (Lisbon) Treaty from having the force of law in the State.”

    This is a preventative measure to be inserted into our Constitution which would effectively make all measures, acts and laws in Lisbon supercede the Constitution of Ireland.

    This is what you are REALLY voting on. The Government want you to worry about everything BUT the Treaty itself. Their behaviour of late should worry you as to the seriousness of the issue at hand. They NEED this passed for Lisbon to be activated and they will try every scaremongering tactic to force you to do it….

  2. Colin McGovern
    May 13, 2012 at 2:35 pm

    Hi Helena,

    The ESM treaty does not require unanimity, and therefore, it’s existence does not hinge on our ratification of it or otherwise, hence my point that the relevant treaty change is article 136.

    Assuming article 136 *is* required, its use as a bargaining chip to remove any other clause is speculation and it cannot be stated as fact that such a veto would achieve anything. The intention to use this as a tactic may be plausible, but it needs to be presented as exactly that to the voter, not a statement about the result of voting one way or the other.

    You are correct to say that we are actually voting on the quoted change to the constitution, however every treaty-related article in the constitution uses the same formulation and its intention is to establish the primacy of whichever international treaty we are signing up to with respect to our laws. If we didn’t use this formulation, then any ratification of any treaty would largely meaningless since every action the government takes as a result of the treaty would be open to persistent court challenges.

    I’m not sure I understand your link to Lisbon, since Lisbon is already part of the EU treaties and isn’t relevant to our ratification or otherwise of this particular treaty. The following is the constitution entry for Lisbon:

    5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 (“Treaty of Lisbon”), and may be a member of the European Union established by virtue of that Treaty.

    6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are CONSTITUTION OF IRELAND – BUNREACHT NA hÉIREANN necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—

    i the said European Union or the European Atomic Energy Community, or institutions thereof,
    ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or
    iii bodies competent under the treaties referred to in this section, from having the force of law in the State.

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