Oireachtas Joint and Select Committees

Wednesday, 18 November 2020

Joint Oireachtas Committee on European Union Affairs

Conference on the Future of Europe: Discussion (Resumed)

Dr. Stephen Coutts:

I will take the questions in the order in which they arrived and more specifically, the ones directed at me. The question of broader institutional change is a very good point to make. Clearly there are problems with the Union, the amount of vetoes and the different points at which vetoes can be used by particular states. I echo Professor Laffan's points about the serious damage to the Union caused by the behaviour of Poland and Hungary. Regarding my confidence in whether they will be successful, that depends. We are at the beginning of this process. It depends on the outcome but, more importantly, it depends on what one's criteria for success are. As I said, there are two things here. One is the process itself and as a means of legitimacy of the Union by increasing the role of citizens in the overall governance of it. That in and of itself might be important, particularly if it leads to a lasting citizens' assembly that will be on a standing basis to allow participatory democracy to feed into the Union. In terms of the outcome, if it can be proved that the Union is responsive to citizens and can come up with a deliverable plan that can make a meaningful difference, that would probably be successful. It is very early to say at this point.

Regarding the questions around treaty change, I apologise if I gave the impression that I see a distinction between treaty change and treaty amendment. I am not that much of a lawyer. I would see the use of those terms as being more or less synonymous so my apologies if that impression was given somewhere. Regarding whether or not a referendum in Ireland would be required, there are two ways of approaching this - one is legally and the second is politically. Legally speaking according to the jurisprudence of the Supreme Court, not every amendment of the European treaty requires a referendum and the amendment of the Irish Constitution. This is only the case when the new treaty delegates or gives up further sovereignty or law-making power to the Union or any international institution. It depends on whether the scope of the Union's activities is being increased, for example, competences. That would require an assessment of the particular amendment that is being proposed. Legally speaking, it is not automatic that a treaty amendment will lead to a referendum in Ireland. We saw it with the use of the simplified revision procedure to amend Article 136 to establish the European Stability Mechanism. This took place without a referendum, which was completely appropriate in that case.

The committee will know as well as I do, and probably better, that it has become almost a political norm that there will be a referendum in Ireland on major treaty changes. I cannot really speak to whether that could change or whether it would be possible somehow to circumvent that in appropriate circumstances.

On whether we should fear treaty change, I have sympathy with the perspective that maybe we should not and that we should be more confident in facing the public more broadly in relation to treaty change if that is what is required. I would say that, first of all, one can answer this question in the Irish context. In the Irish context, we have experience with referendums. Of course, sometimes it has failed but, as Professor Laffan pointed out, that has been frequently down to an information deficit rather than any inherit Euroscepticism on behalf of the Irish public. It would depend on the process. It would depend on the information. If it is done in a way which leverages the deliberative nature of the Conference on the Future of Europe and if we look at the lessons that were learnt from other referendums, including the use of Citizens' Assembly in the case of the repeal of the eighth amendment, there could be a way of approaching it in a manner which would be productive and constructive and would contribute not only to the adoption of a new treaty amendment, but also to a better discussion about Europe, a greater knowledge about European Union affairs and reflection among the broader electorate.

Of course, the question arises not only in the case of Ireland. As for whether we should fear treaty amendment in the broader European context because, as I said, it can fail in multiple states and in multiple ways, I cannot speak to that in any great detail. There are risks which, I suppose, we are not aware of. There is a risk in a failure of a major treaty amendment. We saw this with the constitutional treaty when it failed. There is a damage that would be done. As I said, it would depend on the process. If we approach it properly, treaty amendment should not be ruled out.

I would like to return to a point I made in the opening remarks. When citizens are given the opportunity to feed into a particular process but are told they cannot have some things they might want - for example, an increase in the competence of the Union in environmental matters - because the specific treaty article does not provide the necessary legal basis, that is frustrating from the point of view of citizens. That is why I would not rule it out straightaway.

The final point in relation to the impact of Brexit on any of this is a good point. It has shown a greater appreciation for the European Union which would shape a debate on any EU matters and any treaty amendment. I would be reluctant to frame it as a debate on whether a member state is going to be in or out of Europe, or to suggest that if it rejects this treaty amendment, the train is leaving and it is not getting on. Even though Brexit is important for the appreciation of what the Union does and the foundations of the Union as a mechanism of transnational co-operation among people - that has certainly cut through to people's consciousness - I would not use Brexit as an example by suggesting that a member state might be out of the Union or something like that. I would be careful about framing any treaty amendment in that way.