Irish Journal of European Law
Volume 17 Issue 1
Crotty after Pringle: The Revival of the Doctrine of Implied Amendment
Maria Cahill*
The doctrine of implied amendment allows that amendments to the Constitution be adopted outside of
the constraints of the formal constitutional amendability procedure. Having endorsed the doctrine
during the lifetime of the 1922 Constitution, the Irish courts after 1937 had unambiguously rejected it,
for the ‘scant respect’ it showed for the Constitution as superior law as well as the ‘practical
disadvantage’ that it made the Constitution unknowable. Nevertheless, this article argues that the
doctrine of implied amendment has been enjoying an unremarked revival in the context of the
ratification of European and international treaties, the beginnings of which can be seen in the Crotty
decision, then traced through McGimpsey, and are now magnified by the sweeping Pringle decision.
In Crotty, the Supreme Court judges not only measured the Single European Act for compatibility with
the Constitution – employing a test of constitutional consistency – but they also endorsed the
‘essential scope and objectives’ test – a test of treaty comparison – which compared the SEA for how
different it was from the Treaties of Rome. The basic feature of a test of treaty comparison is, simply,
that it examines the treaty in question by reference to another treaty in order to assess whether or not
it requires a constitutional amendment. Tests of treaty comparison have since been deployed in both
the McGimpsey and Pringle decisions, although the indices of comparison vary widely between
judgments. In Pringle, for example, the majority judges seemed to recognise no less than nine new
indices by which the test of treaty comparison can be applied. These range from whether future
policy-making power of the State is involved to whether foreign policy as a whole is affected; from
whether the treaty is abstract or concrete to whether it has a single purpose or multiple purposes.
Consideration of the consistency and congruence of these indices is for another paper; here, the point
is that the test of treaty comparison, in principle, allows that amendments to the Constitution can slip
through the net because treaties are being measured for the similitude with other treaties without
regard to their impact on constitutional provisions. This current application of the doctrine of implied
amendment in the context of treaty ratification is, it is suggested, certainly no less troubling than its
historical use. The more legally defensible option, which avoids the known dangers of the doctrine of
implied amendment, is, as the dissentient in Pringle has done, to assess any treaty by reference to
the provisions of the Constitution using the test of constitutional consistency.
Introduction
The doctrine of implied amendment allows that amendments to the Constitution be adopted outside of
the constraints of the formal constitutional amendability procedure. Notwithstanding the unambiguous
nature of the Irish constitutional amendability procedure, which requires a popular referendum, the
doctrine is not a stranger to Irish law, having been explicitly endorsed under the 1922 Constitution,
and having more recently been accepted, it is argued, in the context of ratification of international
treaties.
The terms of the Constitution – specifically Articles 46 and 47 – require that a referendum should take
place in Ireland whenever there is a proposal to change ‘[a]ny provision of this Constitution …
1
whether by way of variation, addition, or repeal’. This is an unusual requirement, certainly, in
comparative constitutional terms, and reflects a commitment to popular sovereignty that is stronger
than many of our counter-parts in the European Union or the Council of Europe. The requirement is
*Dr Maria Cahill, Faculty of Law, University College Cork, email: [email protected].
1
Art 46.1 of the 1937 Constitution. For the sake of completeness, one must note that the transitory provisions, in
particular Art 51, prescribed that: ‘Notwithstanding anything contained in Article 46 hereof, any of the provisions
of this Constitution, except the provisions of the said Article 46 and this Article may, subject as hereinafter
provided, be amended by the Oireachtas, whether by way of variation, addition or repeal, within a period of three
years after the date on which the first President shall have entered upon his office’. During the three year period
only two amendments were made by the Oireachtas.
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[2014] 17 (1) IJEL
Crotty after Pringle: The Revival of the Doctrine of Implied Amendment
Maria Cahill
buttressed by decisions of the Supreme Court that require fair procedures in the conduct of these
2
3
referenda, and extol the high place of this form of popular democracy. The words ‘whether by way of
variation, addition, or repeal’ have been understood academically to mean that ‘any amendment – no
4
matter how minor or technical – requires approval in a referendum’ and interpreted judicially so as to
grant to the people ‘full power to amend any provisions … [including] a power to clarify or make more
5
explicit anything already in the Constitution’. The literal meaning of these words and their axiomatic
constructions also deny the possibility of any non-explicit amendment of the Constitution, and
foreclose the possibility of the doctrine of implied amendment becoming a feature of the 1937
Constitution. The choice to endorse an amendability procedure which required parliamentary approval
6
in both houses by simple majority together with popular approval in a referendum by simple majority
for every small incidental change to the Constitution cannot be understood fully in the absence of an
appreciation of the historiography of the 1922 Constitution and the endorsement of the doctrine of
implied amendment in that context.
Article 50 of the 1922 Constitution provided that whilst the constitutional amendability procedure
should be as it is under the 1937 Constitution, for a period of eight years, the Oireachtas could make
7
constitutional amendments by ordinary legislation. Since the method of enacting ordinary legislation
was the same as the method of enacting constitutional amendments, the question arose as to
whether amendments had to be specifically identified because the constitutional amendability
procedure was still a contained, specific procedure of its own (albeit that it was mechanically identical
to the ordinary legislative procedure), or whether the Constitution could be taken to have been
implicitly amended whenever any ordinary legislation contradicted its terms; in other words, whether
or not the Oireachtas was entitled to avail of a doctrine of implied amendment.
8
This question was first considered in 1923 in the case of R (Cooney) v Clinton. O’Connor MR,
considering whether the 1923 Indemnity Act was invalid having regard to Articles 6, 70 and 72 of the
1922 Constitution, held that it was ‘quite unnecessary to consider any such question, having regard to
9
the power conferred on the Oireachtas by Article 50’. He explicitly endorsed the doctrine of implied
amendment with the following words:
It is difficult to see how, during the period of eight years, any Act passed by the Oireachtas
can be impeached as ultra vires so long as it is within the terms of the Scheduled Treaty. It
was urged that any Act of Parliament purporting to amend the Constitution should declare that
it was so intended, but I cannot accede to that argument in view of the express provision that
10
any amendment made within the period may be made by ordinary legislation.
By refusing to ‘accede to that argument’, O’Connor MR in fact endorsed the contrary proposition that
the Oireachtas was capable of making incidental constitutional amendments in the course of the
promulgation of ordinary legislation. One such example was s 3 of the Public Safety Act 1927, which
2
McKenna v An Taoiseach (No. 2) [1995] 2 IR 10; Coughlan v Broadcasting Complaints Commission [2000] 3 IR
1; McCrystal v Minister for Children [2012] IESC 53.
3
Re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies)
Bill 1995 [1995] 1 IR 1; McKenna v An Taoiseach (No. 2) [1995] 2 IR 10; Hanafin v Minister for Environment
[1996] 2 IR 321; McCrystal v Minister for Children [2012] IESC 53.
4
James Casey, Constitutional Law in Ireland (3rd edn, Thomson Roundhall 2000) 709.
5
Finn v Minister for the Environment [1983] IR 154, 163.
6
Art 46.2 and 47.1 of the 1937 Constitution.
7
Art 50 of the 1922 Constitution provided that: ‘Amendments of this Constitution within the terms of the
Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the
Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this
Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed
by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a
majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of
a majority of the voters on the register, or two-thirds of the votes recorded, shall have been cast in favour of such
amendment. Any such amendment may be made within the said period of eight years by way of ordinary
legislation and as such shall be subject to the provisions of Article 47 hereof’.
8
R (Cooney) v Clinton [1935] IR 245.
9
ibid 247.
10
ibid.
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Irish Journal of European Law
Volume 17 Issue 1
stated that: ‘Every provision of this Act which is in contravention of any provision of the Constitution
shall to the effect of such contravention operate and have effect as an amendment of the
Constitution.’ In the case of Attorney General v M’Bride, Hanna J ruled on the constitutionality of this
implied amendment. His dilemma therefore was whether it was:
a sufficient compliance in law with Art. 50 to insert in an Act of Parliament, in vague and
general terms, a clause such as this – a drag net – without specifying either any Article, or
part of an Article, of the Constitution that is to be amended or whether in fact any amendment
11
is made?
Clearly, the learned Judge held deep reservations about the doctrine of implied amendment, as
demonstrated in the following dicta:
The Constitution is a sacred charter, not to be lightly, vaguely, or equivocally tampered with.
But this sect.3 leaves the subjects of the State, who have rights under the Constitution … in
the dark as to what is really altered in the Constitution, instead of enlightening them as to any
change in their status. An “omnibus” amendment of this kind is contrary to the spirit of Article
50, if not the letter. The rights of the people should not be obscured by the facile pen of the
12
parliamentary draftsman.
Nonetheless, he could find no legal basis on which to make a finding of unconstitutionality, holding
instead that ‘having regard to the wording of Art. 50, that the amendment can be made “by way of
ordinary legislation” I feel compelled, but with great hesitation, to come to the conclusion that this
13
sect. 3 comes within that term; but it is a precedent that should not be followed’. In practical terms,
the judgment concluded that s 3 of the Public Safety Act was not to be declared invalid. As a matter of
principle, it confirmed the existence of the doctrine of implied amendment as a constitutional principle,
notwithstanding the noted misgivings.
Since 1937, the doctrine has been comprehensively rejected, most notably in the cases of Conroy v
14
15
Attorney General and Laurentiu v Minister for Justice. For the Supreme Court, Barrington J, in
Laurentiu, outlined the history of the doctrine of implied amendment, noting that:
[f]or many years it was assumed that, because the Constitution of the Irish Free State could
be amended during all of its life by ‘ordinary legislation’ that any piece of legislation which,
incidentally, conflicted with the Constitution amended it pro tanto even though it was not
16
expressed to be an Act to amend the Constitution.
Speaking obiter, he called into question whether the R (Cooney) v Clinton decision accurately
17
interpreted Article 50 of the 1922 Constitution to mandate a doctrine of implied amendment, before
going on to identify the considerable disadvantages thereof:
[To have accepted] a doctrine that the Constitution could be amended by ordinary legislation
which need not even be expressed to be a constitutional amendment showed scant respect to
the Constitution. It also assumed that the Oireachtas had so little respect for the Constitution
that they would amend it without thinking of what they were doing. It also had the practical
disadvantage that one could not find out what the Constitution of the Irish Free State provided
18
without reading the whole body of statute law passed since 1922.
11
Attorney General v M’Bride [1928] IR 451, 456.
ibid.
13
ibid.
14
Conroy v Attorney General [1965] IR 411.
15
Laurentiu v Minister for Justice [1999] 4 IR 26.
16
ibid 68.
17
‘[I]f one looks at Article 50 of the Constitution of the Irish Free State it seems quite clear that the Article uses
the term “ordinary legislation” to distinguish amendments which may, for a limited period, be made by the
Oireachtas itself from amendments which must be submitted to the people by way of referendum’: Laurentiu v
Minister for Justice (n15) 69.
18
ibid.
12
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Crotty after Pringle: The Revival of the Doctrine of Implied Amendment
Maria Cahill
Finally, he declared that the doctrine had already been ‘abandoned’ by the Supreme Court in the
19
previous Conroy case. Conroy v Attorney General is an interesting case because Kenny J in the
High Court clearly explained the ‘quicksand effect’ (as it were) that the doctrine of implied amendment
had on the 1922 Constitution, speaking in the context of legislation which created criminal offences
without necessarily protecting the due process rights guaranteed under the Constitution:
[L]egislation could not have been successfully challenged on the ground that it violated a
provision of the Constitution of 1922 even if it was not described as an amendment of the
Constitution of 1922 … The result was that all laws enacted between 1922 and 1937 which
created new summary offences could not be challenged on constitutional grounds even if they
20
conflicted with the provisions of Article 72.
In short, Kenny J’s dictum made it abundantly clear that not only were the constitutional principles
guaranteed in the remaining provisions of the Constitution all eminently disposable at the hands of the
Oireachtas since constitutional amendment happened by parliamentary majority, but, moreover, the
doctrine of implied amendment meant that it would never be clear which constitutional principles had
been disposed of, in which context, and to which extent. Perhaps having appreciated the problem in
the same way, the Supreme Court, comprised of Ó Dálaigh CJ, Lavery, Kingsmill Moore, Haugh and
Walsh JJ, ruled that ‘the Court rejects the submission that the Constitution of Saorstát Éireann was
21
amended by the Road Traffic Act, 1933’. Effectively, here, the Supreme Court charged with
interpreting the 1937 Constitution is reversing the decision that the Supreme Court charged with
interpreting the 1922 Constitution made regarding the interpretation of Article 50 of the 1922
Constitution. It is arguable that it was not entirely within the scope of its competence to re-interpret a
provision of a Constitution over which it has no jurisdictional supremacy. Nonetheless both the Conroy
and the Laurentiu decisions hold a very strident position that the doctrine of implied amendment is no
longer a constitutional principle and recognise the threat that the doctrine poses to the rule of law
itself, for the fact that it makes it impossible to know exactly what the constitutional principles are
without reading through every statute in order to ascertain their silently amending effect on the
Constitution.
Thus, the current position in Irish law is very emphatically that implicit amendment of the Constitution
by means of legislation produced by the Oireachtas is constitutionally impermissible. The argument of
this article, however, is that through three seminal cases in which treaty ratifications were challenged
on the basis that they were unconstitutional in the absence of a referendum, the doctrine of implied
22
amendment has enjoyed something of a revival in Irish law. In order to show that, the Crotty,
23
24
McGimpsey, and Pringle decisions will be examined. It is submitted that, in these judgments, the
courts oscillate between two models for arriving at an answer as to whether or not a constitutional
referendum is needed. One model, the test of constitutional consistency, measures the provisions of
the treaty against the provisions of the Constitution in order to ascertain the consistency of the former
with the latter. Finding consistency, the Court will declare that ratification can proceed without a
constitutional referendum to mandate ratification. Finding inconsistency, the Court will require a
constitutional referendum prior to ratification. The other model, the test of treaty comparison, does not
measure the treaty under investigation by reference to the provisions of the Constitution but rather by
reference to a previous treaty. Finding that the treaties have sufficiently similar characteristics (what
counts as a ‘similar characteristic’ varies between the cases and between the judges), the Court will
hold that parliamentary ratification suffices. Finding that the treaties are sufficiently dissimilar, the
Court will hold that a referendum is necessary in order to effect the constitutional change that is
required. The key difference between the two models, obviously, is not the stringency of the test, but
the benchmark against which the treaty is measured: the test of constitutional consistency using the
benchmark of the Constitution; the test of treaty comparison using the benchmark of a previously
ratified treaty. The key contention is therefore that the test of treaty comparison, in principle, allows
that some (perhaps quite minor and technical) amendments can be made outside of the formal
19
ibid.
Conroy v Attorney General (n14).
21
ibid.
22
Crotty v An Taoiseach [1987] IR 713.
23
McGimpsey v Ireland [1988] IR 567; McGimpsey v Ireland [1990] 1 IR 110.
24
Pringle v Government of Ireland [2012] IEHC 296; Pringle v Government of Ireland [2012] IESC 47.
20
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Irish Journal of European Law
Volume 17 Issue 1
constitutional amendability procedure insofar as it does not examine a treaty for consistency with the
Constitution. This article will proceed as follows: Part 1 examines the manner in which the Crotty
decision itself espouses the test of comparison (Part 1.1) and the test of consistency (Part 1.2) while
also noting both the academic interpretations (Part 1.3) and judicial interpretations, notably in the
McGimpsey decision, (Part 1.4) which interpret the judgments in Crotty. Part 2 focusses on the
Pringle decision and how the judges in that case employ the test of comparison (Part 2.1) and the test
of consistency (Part 2.2) in that case.
1.
Crotty v An Taoiseach
25
The challenge raised in the case of Crotty v An Taoiseach was that the ratification of the Single
European Act could not proceed without a referendum in which the people would assent to its terms.
Since the Oireachtas had already ratified Title II of the Single European Act (SEA), by means of the
European Communities (Amendment) Act 1986, the examination of that part of the SEA was, in fact,
an examination of the constitutionality of the 1986 Act of the Irish parliament. On the other hand, Title
III of the SEA had not, at the time of the challenge, already been incorporated and therefore it could
be examined independently of any existing ratification attempt. The Supreme Court ruled on Title II
and Title III separately; unanimously affirming the constitutionality of the 1986 Act which ratified Title
II, and by a majority of 3-2 holding that Title III would require a referendum.
Somewhat surprisingly, given that the challenge revolved around the necessity or not of holding a
referendum, Article 46 is mentioned only once in all of the various judgments in this case, and that is
in the decision of the High Court. Barrington J, in his judgment, noted that the Article 6 invocation of
the right of the People ‘in final appeal, to decide all questions of national policy, according to the
requirements of the common good’ is made concrete in three provisions of the Constitution: Article 16,
which provides for general election of public representatives to parliament; Article 27, which allows
the people to vote on a Bill which is declared by the President to be of national importance; and
Article 46, which requires that constitutional amendments take place only by referendum. In relation to
the latter, Barrington J noted that ‘if the Constitution is to be amended, it is to be amended in
accordance with the machinery established under Articles 46 and 47 of the Constitution and not
26
otherwise’ ; a finding which quite firmly re-affirms the constitutional prohibition on the doctrine of
implied amendment.
1.1
The Test of Treaty Comparison
The Supreme Court decision on Title II examined the constitutionality of the European Communities
(Amendment) Act 1986. The legislation, being an Act of the Oireachtas, was entitled to, and was
afforded, a presumption of constitutionality, although the precise implications of that presumption
27
were not explicated by the Court. The decision focussed on Article 29.4.3 of the Constitution which,
28
at the time, provided that:
The State may become a member of the European Coal and Steel Community (established
th
by the Treaty signed at Paris on the 18 day of April, 1951), and the European Economic
th
Community (established by Treaty signed at Rome on the 25 day of March, 1957), and the
th
European Atomic Energy Community (established by Treaty signed at Rome on the 25 day
of March, 1957).
Rather than construing this provision literally as permitting the ratification of those named treaties
(and no other treaties), the Supreme Court instead adopted a looser approach to its interpretation. It
25
Crotty v An Taoiseach (n22).
ibid 745 (emphasis added).
27
Since the Court is examining the validity of the 1986 Act as an indirect way of measuring whether or not a
referendum was necessary in order to adopt Title II, the analysis begins with a presumption of constitutionality.
Finlay CJ for the Supreme Court held that: ‘The Act of 1986 enjoys the presumption of constitutional validity, so
the onus is on the plaintiff to show that it is in some respect invalid, having regard to the provisions of the
Constitution’: Crotty v An Taoiseach (n22) 768. However, the judge did not later explain how the presumption of
constitutionality specifically impacted, if at all, on the eventual finding.
28
Art 29.4.3 has been revised several times as different amendments relating to European integration have been
introduced into the Constitution. It now simply reads: ‘The State may become a member of the European Atomic
th
Energy Community (established by Treaty signed at Rome on the 25 day of March, 1957)’.
26
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[2014] 17 (1) IJEL
Crotty after Pringle: The Revival of the Doctrine of Implied Amendment
Maria Cahill
considered that the State had a constitutional mandate to join those Communities, which entailed, in
respect of the European Economic Community, a mandate to join ‘a developing organism with diverse
and changing methods for making decisions and an inbuilt and clearly expressed objective of
29
expansion and progress’. Article 29.4.3 was thereby construed in a quite unique way as:
[A]n authorisation given to the State not only to join the Communities as they stood in 1973,
but also to join in amendments of the Treaties so long as such amendments do not alter the
essential scope or objectives of the Communities. To hold that the first sentence of Article 29,
s.4, sub-s.3 does not authorise any form of amendment to the Treaties after 1973 without a
further amendment of the Constitution would be too narrow a construction; to construe it as
an open-ended authority to agree, without further amendment of the Constitution, to any
30
amendment of the Treaties would be too broad.
What is deemed to be ‘too narrow’ here is precisely the literal interpretation of Article 29.4.3 which
understands that it permits ratification of the named treaties, allowing the State to become a member
of those named organisations. There is no particular legal or constitutional basis identified that
explains why the literal interpretation is ‘too narrow’; indeed, the judgment purports to interpret Article
29.4.3 in isolation, there being no reference to other constitutional provisions with which it is being
harmoniously interpreted such as might identify a countervailing constitutional principle or value.
Nonetheless, the literal interpretation cannot be described as ‘too narrow’ except by reference to
some other principle or value. Similarly, the Court held that construing Article 29.4.3 as mandating
ratification of any and all subsequent treaties that the Member States might decide to sign would be
‘too broad’. It would have been helpful to know the principle or goal or value the judges had in mind in
drawing these comparative conclusions. There are numerous contenders which have a constitutional
basis, for example, and which would legitimately be taken into consideration in an interpretative
approach to Article 29.4.3 which took into account its inter-relationship with other systemic
constitutional principles. Perhaps the Supreme Court was concerned with the inalienable right of selfdetermination in Article 1 or the protection of the principles of democracy or sovereignty in Article 5;
perhaps it was keen to protect the constitutional positions of parliament (Article 15) or the government
(Article 28) or the national courts (Article 34); perhaps was it wary of possible breaches of
31
fundamental rights (Articles 40-44). On the other hand, perhaps the Supreme Court was weighing
up non-constitutional principles such as the economic benefits of integration or the political value of
being seen to be co-operating with the European project, or even had its eyes on the provisions of the
treaties and their bold ambition to form ‘an ever closer union among the peoples of Europe’.
Whatever legal principle or non-legal concern was in play, what is important for the argument here is
to realise that the Supreme Court did not rule in the following way: Article 29.4.3 mandates the
ratification of certain specified treaties and Article 46.1 requires that any ‘addition, variation, or repeal’
of a constitutional provision should take place according to the constitutional amendability procedure,
which means that if the addition of new treaties which vary the terms of treaties that are
constitutionally mandated is contemplated, that must be done using the formal constitutional
amendability procedure. Instead, the Supreme Court adopted a novel approach to constitutional
amendability under the 1937 Constitution by holding that some kinds of amendments can take place
outside of the rigours of the constitutional amendability procedure. Specifically, the ‘essential scope or
objectives’ test allows that some treaties which amend treaties that had been expressly recognised by
the Constitution can be ratified without constitutional amendment. In effect, then, Article 29.4.3
becomes a derogation from the application of Article 46 insofar as whereas Article 46 does require
29
Crotty v An Taoiseach (n22) 770.
ibid 767.
31
The Supreme Court would not be alone if it was concerned about such matters, since, for example, the
equivalent provision in the German Constitution provides, in art 23.1, that: ‘With a view to establishing a united
Europe, the Federal Republic of Germany shall participate in the development of the European Union that is
committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and
that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To
this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The
establishment of the European Union, as well as changes in its treaty foundations and comparable regulations
that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject
to paragraphs (2) and (3) of Article 79’. See <https://www.btg-bestellservice.de/pdf/80201000.pdf> accessed 25
June 2014.
30
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Irish Journal of European Law
Volume 17 Issue 1
that any amendment to any provision of the Constitution, no matter how insignificant, must be
adopted only after a popular referendum, Article 29.4.3 is interpreted to allow that treaties making
certain kinds of amendments to treaties that have previously been ratified at constitutional level can
be adopted outside of the rigours of Article 46. This interpretation of Article 29.4.3 provides for the
implied amendment of the Constitution both at a formal and substantive level. At a formal level, Article
29.4.3 is impliedly amended so that it now reads:
The State may become a member of the European Coal and Steel Community (established
th
by the Treaty signed at Paris on the 18 day of April, 1951), and the European Economic
th
Community (established by Treaty signed at Rome on the 25 day of March, 1957), as
amended by Title II of the Single European Act and the European Atomic Energy Community
th
(established by Treaty signed at Rome on the 25 day of March, 1957).
At a substantive level, the changes made to the founding treaties by Title II of the Single European
Act also impliedly amend the Constitution. This requires a closer look at the ‘essential scope or
objectives’ test. By shifting the focus from the compatibility of the Single European Act with the
Constitution and towards a comparison of that treaty with the Treaties of Rome, the essential scope
and objectives test is test of treaty comparison rather than a test of constitutional consistency.
Specifically, the ‘essential scope and objectives’ test established in Crotty measures the need for a
constitutional amendment by means of a comparison between the three international treaties that
were adopted in 1951 and 1957, in particular the Treaty establishing the European Economic
Community in 1957, (although Ireland did not negotiate or sign those treaties at those times) and a
subsequent international treaty agreed in 1983 (which Ireland did negotiate and sign). Moreover,
according to Finlay CJ, this use of the benchmark treaty as the basis for a comparative analysis is
actually the rightful method of constitutional interpretation, since the meaning of the Irish constitutional
provision is revealed by the essential scope and objectives of the benchmark treaty:
In discharging its duty to interpret and uphold the Constitution the Court must consider the
essential nature of the scope and objectives of the Communities as they must be deemed to
have been envisaged by the people in enacting Article 29, s. 4, sub-section 3. It is in the light
of that scope and those objectives that the amendments proposed by the Single European
32
Act fall to be considered.
Some of the operational features of this test of treaty comparison are also made plain in the
33
judgment. It is a test that is premised on originalism as a method of interpretation, since it asks the
Court to determine ‘the essential nature of the scope and objectives of the Communities as they must
be deemed to have been envisaged by the people’ when they assented to the constitutional
amendment to insert Article 29.4.3 in 1973. This can be identified as an originalist approach to
constitutional interpretation in the sense that it concerns both the interpretation of a constitutional
provision and what was in the mind of the people as they approved a constitutional amendment by
popular referendum. On the other hand, it is an originalism which is concerned not with their
intentions as authors and drafters and ratifiers of a constitutional text who make mutual commitments
to each other in the act of approving an amendment, but simply with their knowledge of the provisions
of the European Economic Communities and foresight as to its probable development. For this
reason, it is an atypical form of originalism. However, it is an objective, rather than a subjective, form
of originalism that is being espoused, since it asks not what the people actually envisaged but what
they must ‘be deemed to have … envisaged’. Since it is an objective test, the sociological reality of
what the people did know or foresee is not, of itself, relevant, but rather what the judges deem that
they envisaged.
Through the operation of the ‘essential scope or objectives’ test in Crotty, the unanimous conclusion
of the Supreme Court on the Title II decision was that:
32
Crotty v An Taoiseach (n22) 768 (emphasis added).
In the presentation entitled ‘25 Years after Crotty v An Taoiseach: Are Referendums Really Necessary for EU
Treaties?’, at the launch event of ConstitutionProject.ie on 27 September 2012, some of these arguments,
together with some complementary arguments, were made by the author <http://constitutionproject.ie/?p=66>
accessed 25 June 2014.
33
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Maria Cahill
neither the proposed changes from unanimity to qualified majority, nor the identification of
topics which while now separately stated, are within the original aims and objectives of the
EEC, bring these proposed amendments outside the scope of the authorisation in Article 29,
34
s. 4, sub-s. 3 of the Constitution.
That is, since Title II did not entail a change to the essential scope and objectives of the earlier treaty,
no formal constitutional amendment was needed in order to ratify it. Is there, in substance, an
amendment of the Constitution, however? One of the principal features of Title II is that, as the Court
noted, certain competence areas were made the subject of decision-making by qualified majority,
rather than decision-making by unanimity. As Doyle recognises, these changes entail ‘the concrete
35
diminution of sovereignty’. Having constitutionally mandated the Treaties of Rome which required
unanimous decision-making among the Member States, the Constitution already accepted that the
national parliament would not have a direct role in those decisions, but it assumed, since unanimity
effectively gave each Member State a veto, that the Government would still exercise a decisive role in
securing Ireland’s legislative autonomy. Indeed, in a sense all that Article 29.4.3 did from a
constitutional perspective was to shift some legislative autonomy from the legislative to the executive
branch of government, since the veto ensured that the Government retained capacity to make
decisions in Ireland’s interest. Qualified majority voting as the decision-making rule means that the
legislative autonomy that once belonged exclusively to the Irish parliament was now no longer even
vested in the Irish government. That is one of the ways in which the substance of the Single European
Act constituted an implied amendment of the Constitution.
The argument here is that the test of treaty comparison – focussing as it does on the differences
between treaties, rather than the question of constitutional consistency – does, in principle, accept the
existence of the doctrine of implied amendment as a constitutional principle. In formal terms, Article
29.4.3 was impliedly amended by Title II of the SEA since although the provision was retained in its
original wording, in fact there was an unrecorded amendment. In substantive terms, the shift to
qualified majority voting in Title II constituted an implied amendment of the Constitution insofar as it
represented a reduction in the legislative autonomy of the government. This is not to over-state the
ramifications of these particular implied amendments of the Constitution on the overall constitutional
architecture, but rather to realise in concrete terms that the test of treaty comparison – and here the
‘essential scope or objectives’ test – does revive the doctrine of implied amendment and so to be
watchful for its deployment in subsequent cases.
1.2
The Test of Constitutional Consistency
Interestingly, when considering whether or not Title III of the Single European Act can be ratified by
parliament, none of the five judges uses this ‘essential scope and objectives’ test in order to assess
36
whether an amendment of the Constitution is needed prior to ratification. In fact, all five judges, in
their individual judgments on the ratification of Title III endorse a test of constitutional consistency,
measuring those particular provisions of the SEA for compatibility with the Constitution as a means of
determining whether a constitutional amendment is needed before ratification can be achieved. That
34
Crotty v An Taoiseach (n22) 770.
Oran Doyle, Constitutional Law: Text Cases and Materials (Clarus Press 2008) 392.
36
Nonetheless, it may be possible to discern in the dissenting judgment of Finlay CJ, as he discusses the
provisions of Title III which are entitled ‘Provisions on European cooperation in the sphere of foreign policy’, that
his approach is rooted, at least in part, in the test of treaty comparison. He admits that the provisions have the
‘possible ultimate objective of a form of European political union between the Member States of the Communities
as an addition to the existing economic union between them’, and further that: ‘There can be no doubt that if that
aim were ever achieved it would constitute an alteration in the essential scope and objectives of the Communities
to which Ireland could not agree without an amendment of the Constitution’: Crotty v An Taoiseach (n22) 771.
However, his view is that the provisions of Title III are too insignificant to constitute such an alteration, since they
impose merely obligations to consult with other Member States and take their position into account and to begin
in very embryonic ways to work towards consensus and joint action: Crotty v An Taoiseach (n22) 772. With this
conclusion, Griffin J, the other dissentient, concurs, finding that that the provisions of Title III did not ‘impose any
obligations to cede any sovereignty or national interest in the field of foreign policy’: Crotty v An Taoiseach (n22)
790. To the extent to which their judgments implicitly apply the ‘essential scope and objectives’ test, finding that
the test has not been satisfied because the provisions in Title III impose only minor obligations of a consultative
nature, they may be understood to apply the test of treaty comparison espoused in the Title II decision.
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is not to say, of course, that they reach the same result, or even that they examine the provisions of
Title III against the same provisions of the Constitution.
The majority judges, Walsh, Henchy and Hederman JJ, all find that Title III is inconsistent with the
Constitution, and therefore that an amendment of the Constitution is required before it can be ratified.
Mr Justice Henchy’s judgment, in particular, focused sharply and turned on the question of
37
consistency,a term he mentioned on six different occasions. The legal basis justifying the decision to
adopt a test of constitutional consistency he identified in the following way:
It is true that Article 29 s. 4 sub-s. 1 of the Constitution provides that “the executive power of
the State in or in connection with its external relations shall in accordance with Article 28 of
this Constitution be exercised by or on the authority of the Government”. However, when one
turns to Article 28 one finds that s.2 of that Article clarifies the position by declaring that “the
executive power of the State shall, subject to the provisions of this Constitution, be exercised
by or on the authority of the Government”. (Emphasis added.) It follows, therefore, that in the
conduct of the State’s external relations, as in the exercise of the executive power in other
respects, the Government is not immune from judicial control if it acts in a manner or for a
38
purpose which is inconsistent with the Constitution.
Title III must be examined on its own merits for its consistency with the Constitution, and it cannot,
according to him, parasitically rely on the permission granted in Article 29.4.3. This is especially true,
39
according to Henchy J since the preamble of Title III clearly envisioned a European Union, a very
different prospect from that of the Treaties of Rome. On this basis, Henchy J concluded that: ‘Ireland’s
constitutional authority for ratifying the SEA is not to be found in Article 29, s. 4, sub-s. 3 of the
Constitution, which is the constitutional amendment which allowed Ireland to become a member of the
40
European Communities’.
In his examination for constitutional consistency, Henchy J focussed on Article 1, which he interpreted
as including that ‘the State’s right to conduct its external relations is part of what is inalienable and
41
indefeasible’ ; Article 5, which he understood to entail that ‘any attempt by the Government to make
a binding commitment to alienate in whole or in part to other states the conduct of foreign relations
42
would be inconsistent with the Government’s duty’ ; and Article 6.1 from which, according to him, ‘it
follows that the common good of the Irish people is the ultimate standard by which the constitutional
43
validity of the conduct of foreign affairs by the Government is to be judged’. These three provisions
led him to the conclusion that: ‘To be bound by a solemn international treaty [to take full account of
the common position of the other Member States] is, in my opinion, inconsistent with the obligation of
44
the Government to conduct its foreign relations according to the common good of the Irish people.’
At the first level, his argument is simply that the provisions of the SEA are inconsistent with these
three provisions of the Irish Constitution, based on a literal interpretation of those provisions.
45
However, he also comprehends within Article 6.1, as well as other constitutional provisions, a strong
implication that ‘under the Constitution the point of reference for a determination of a final position on
46
any issue of foreign relations is the common good of the Irish people’. This teleological interpretation
37
Crotty v An Taoiseach (n22) 784, 786, 787, 788 and 789.
ibid 786.
39
The preamble to the Single European Act reads: ‘moved by the will to continue the work undertaken on the
basis of the Treaties establishing the European Communities and to transform relations as a whole among their
States into a European Union, in accordance with the Solemn Declaration of Stuttgart of 19 June 1983; resolved
to implement this European Union on the basis, firstly, of the Communities operating in accordance with their own
rules and, secondly, of European Cooperation among the Signatory States in the sphere of foreign policy and to
invest this union with the necessary means of action …’
40
Crotty v An Taoiseach (n22) 784.
41
ibid 787.
42
ibid.
43
ibid.
44
ibid 788.
45
ibid 787. The judge remarks: ‘In this and in a number of other respects throughout the Constitution the central
position of the common good of the Irish people is stressed as one of the most fundamental characteristics of
Ireland as a sovereign, independent, democratic state’.
46
ibid.
38
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of the Constitution and its provisions presents a different dimension to the test of constitutional
consistency, and it is a simple feat of analysis to conclude that the teleological aims of the SEA, being
47
‘the common position determined by Member States’, are inconsistent with the teleological aims of
the Constitution. Applying the test of constitutional consistency by means both of a literal and a
teleological approach to constitutional interpretation, his conclusion, in the light of Articles 1, 5, and 6
in particular, is that the SEA ‘requires the State to act in the sphere of foreign relations in a manner
48
which would be inconsistent with constitutional requirements’, and therefore that ratification would
49
be impossible ‘without the appropriate constitutional amendment’.
Meanwhile Mr Justice Walsh concluded that ‘the assent of the people is a necessary prerequisite to
50
the ratification of so much of the Single European Act as consists of Title III thereof’. His reasoning
uses a systemic approach to constitutional interpretation. This approach looks beyond the words of
the provisions and before the ultimate vision espoused in the Constitution to the architecture
established by the words with a view to achieving the ultimate vision; viz Walsh J is concerned with
the powers established by the Constitution to which powers of government are given subject to
specific limits. His most forceful argument, using this systemic approach to constitutional
interpretation is that the executive branch of government is a trustee of powers given to it by the
Constitution, and, not being vested with original power, does not have the authority to re-allocate its
power to a different institution. He makes this argument as a point of general principle which applies
to parliament as much as it does to the Government, and without any particular policy areas or
competences being specified:
It is not within the competence of the Government, or indeed of the Oireachtas, to free
themselves from the restraints of the Constitution or to transfer their powers to other bodies
unless expressly empowered so to do by the Constitution. They are both creatures of the
51
Constitution and are not empowered to act free from the restraints of the Constitution.
Later, he re-iterates the point, tailoring it more closely to the particularities of Title III:
In enacting the Constitution the people conferred full freedom of action upon the Government
to decide matters of foreign policy and to act as it thinks fit on any particular issue ... In my
view, this freedom does not carry with it the power to abdicate that freedom or to enter into
binding agreements with other States to exercise that power in a particular way or to refrain
from exercising it save by particular procedures, and so to bind the State in its freedom of
action in its foreign policy. The freedom to formulate foreign policy is just as much a mark of
52
sovereignty as the freedom to form economic policy and the freedom to legislate … If it is
now desired to qualify, curtail or inhibit the existing sovereign power to formulate … it is not
within the power of the Government itself to do so. The foreign policy organ of the State
cannot, within the terms of the Constitution, agree to impose upon itself, the State or upon the
people the contemplated restrictions upon freedom of action. To acquire the power to do so
would, in my opinion, require a recourse to the people … In the last analysis it is the people
53
themselves who are the guardians of the Constitution.
For his part, Hederman J agrees with the judgments of both Walsh and Henchy JJ, and, in his own
short judgment focusses, like Walsh J had, on the systemic approach to constitutional interpretation.
In his view, ‘the essential point at issue’ is whether the State can ‘enter into binding agreements with
other states, or groups of states, to subordinate, or to submit, the exercise of the powers bestowed by
the Constitution to the advice or interests of other states’ and the constitutional answer is that: ‘The
State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any
47
ibid.
ibid 789.
49
ibid.
50
ibid 784.
51
ibid 778.
52
Note that in this statement, Walsh J is implying that the freedom to formulate foreign policy is not any less a
mark of sovereignty than the freedom to formulate policy in other areas, not that it is an exclusive mark of
sovereignty or any more a mark of sovereignty than holding that same freedom in other aspects of government.
53
Crotty v An Taoiseach (n22) 783-784.
48
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way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers
54
– not the disposers of them.’
The dissenting judges also use the test of constitutional consistency, but only in relation to the
fundamental rights provisions. Finlay CJ, after an examination of the provisions of Articles 28.2, 28.3,
55
29.4.1, 29.5.1, 29.5.2, and 29.6 (without any reference to Article 29.4.3), concluded that these
‘provisions concerning the exercise of executive power in external relations do not contain any
express provision for intervention by the Courts’, except in cases where constitutional rights of the
56
person were threatened or breached. In this instance, Finlay CJ found that there was no conflict
between a constitutional right enjoyed by Mr Crotty and the provisions of Title III and therefore
ratification of Title III could proceed without the need for a referendum. Griffin J agreed with this
analysis, stating that:
[T]here is nothing in the provisions of Articles 28 and 29 of the Constitution from which it
would be possible to imply any general right in the Courts to interfere with the exercise of the
executive power in the sphere or area of external relations, but that in any instance where the
exercise of that power constitutes an actual or threatened invasion or breach of the
constitutional rights of the individual the Courts must have both the right and the duty to
intervene to protect those rights. The decision in Boland v. an Taoiseach [1974] IR 338 is in
57
my opinion consistent with that view.
It must be noted that this limited use of the test of constitutional consistency – where it applies only to
certain privileged provisions of the Constitution – is also in principle open to the doctrine of implied
amendment, since it permits implicit amendment of the Constitution so long as that amendment does
not involve one of those privileged provisions.
In sum, although all five judges employ the test of constitutional consistency in their Title III decisions,
the minority judges confine themselves to test for consistency with only some privileged constitutional
provisions concerning fundamental rights, whereas the majority judges, who examine Title III for
consistency with the Constitution – employing literal, systemic, and teleological approaches to
constitutional interpretation – find a lack of consistency that can only be remedied by use of the
constitutional amendability procedure.
1.3
Scholarly Interpretations of Crotty
As Casey explains, the Crotty case led to political embarrassment for the Government, which was
58
registered in the Dáil debates on the Tenth Amendment of the Constitution Bill 1987. Two of the
other points that have been made about the decision concern the ‘essential scope and objectives’ test
and have implications for the use of the test of treaty comparison in general. The first is that the
‘essential scope and objectives’ test is taken to be a test that rolls over, as it were, so that whereas
the SEA was measured by reference to whether it altered the ‘essential scope and objectives’ of the
Treaty establishing the European Economic Community, the Maastricht Treaty would be measured by
reference to the Single European Act; the Treaty of Amsterdam by reference to the Maastricht Treaty;
54
ibid 794.
ibid 773.
56
ibid 774, relying on the decision of Griffin J in Boland v An Taoiseach [1974] IR 338: ‘There is nothing in the
provisions of Articles 28 and 29 of the Constitution, in my opinion, from which it would be possible to imply any
right in the Courts in general to interfere in the field or area of external relations with the exercise of an executive
power. This does not mean that the executive is or can be without control by the Courts in relation to carrying out
executive powers even in the field of external relations. In any instance where the exercise of that function
constituted an actual or threatened invasion of the constitutional rights of an individual, the Courts would have a
right and duty to intervene’.
57
Crotty v An Taoiseach (n22) 794-795.
58
‘One result of Crotty’s case was to embarrass two administrations of differing political complexions – the Fine
Gael/Labour coalition which signed the SEA and its Fianna Fáil successor. For the case had a twofold
consequence: (a) the State could not ratify the SEA without a new constitutional amendment (b) the necessary
delay in holding a referendum delayed the coming into operation of the SEA throughout the European
Community. The shock apparently generated by the Crotty decision is evidenced in the Dáil debates on the Tenth
Amendment of the Constitution Bill 1987. It was suggested that the line between the executive and judicial power
had been blurred, with the result that no one could be certain about the constitutional limits on the Government’s
power to conduct international relations’: Casey (n4) 217.
55
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and so on. Essentially, then, the test measures the difference between the newest treaty and the
scope and objectives of the treaty that was last ratified by referendum as a constitutional amendment.
This is important because it gives the understanding that the Constitution is interpreted not by means
of an examination of its provisions and the principles laid down therein, but by reference to the
previous treaties and their ‘scope and objectives’. It emphasises that the test to be employed in the
determination of whether or not a treaty requires constitutional amendment is a test of comparison
between its provisions and the provisions of a different treaty.
The second – and more interesting and important point – is that the decision of the Supreme Court
regarding Title III has been understood and explained as being an implicit application of the ‘essential
scope and objectives’ test, even if that test was not actually used in the judgments. Doyle, for
example, having drawn attention to the ‘apparent discrepancy’ between the decision on Title II and
the decision on Title III, viz that Title III contained merely ‘procedural requirements and aspirational
statements’, whereas the changes from unanimity to qualified majority voting in Title II were a more
serious threat to sovereignty, sought to explain that discrepancy in the following way:
[T]he apparent discrepancy between these two rulings may be explained by the Court’s focus
on whether a particular amendment was beyond the essential scope and objectives of the
Treaty. While many of the changes represented (considerably) more of the same, Title III was
a little bit of something quite new: the first formal foray into foreign affairs. In this regard,
Henchy J’s comment that Title III marked the transformation of the EEC from an essentially
economic organisation to a political organisation may be the best explanation of the Court’s
60
greater wariness of Title III.
Doyle’s argument here does not obfuscate the legal reality that the judges did not actually rely on the
essential scope or objectives test of treaty comparison in making their decision on Title III, and
instead employed a test of constitutional consistency. It is simply that, in Doyle’s view, the outcome
reached on the Title III decision could also have been reached through the use of the test of treaty
comparison. Another commentator insists that the ratio of the decisions on Title II and Title III are
quite different, explaining the Crotty outcomes in the following way:
In relation to changes to the existing European Treaties (that was, Title II SEA), the original
constitutional licence to join in 1972 would allow such changes once these did not go beyond
“the essential scope or objectives” of the Treaties.
In relation to changes which beyond [sic] this original licence and which accordingly were not
necessitated by the obligations undertaken in the existing Treaties (that was, the changes
enshrined in Title III SEA), the Court – by a majority of three to two – held that, because Title
III SEA would involve a further transfer of sovereign powers to the EU … its ratification would
61
be impermissible in the absence of the approval of the Irish People by way of referendum.
59
Gerard Hogan and Gerry Whyte, Kelly: The Irish Constitution (4th edn, Tottel Publishing 2003) 518 -520. The
authors state that: ‘Judged by the test articulated by the Supreme Court in Crotty, it is clear that subsequent
constitutional amendments to permit the ratification of the Maastricht and Amsterdam Treaties were plainly
required. The Treaty of European Union created the new three pillar structure and provided for the single
currency and the Amsterdam Treaty provided for the “communitarisation” of certain competences in justice and
home affairs. In both instances, the changes proposed were significant and profound and clearly went beyond the
scope of any pre-existing licence permitted by the 3rd Amendment in 1972 and the 10th Amendment in 1987’.
Note here that they are referring to a rolling point of comparison by the inclusion of the tenth amendment. There
follows a discussion on whether or not the Nice Treaty fell ‘within the scope of any existing licence’: Hogan and
Whyte 520. See also: Cathryn Costello, ‘Ireland’s Nice Referenda’ (2005) 1 European Constitutional Law Review
357; Gerard Hogan, ‘The Nice Treaty and the Irish Constitution’ (2001) European Public Law 565; Laurent Pech,
‘Le référendum en Irlande pour ratifier les traités européens: obligatoire ou coutumier?’ <http://www.robertschuman.eu/fr/questions-d-europe/0115-le-referendum-en-irlande-pour-ratifier-les-traites-europeens-obligatoireou-coutumier> accessed 25 June 2014.
60
Doyle (n35) 392.
61
David Fennelly, ‘Crotty’s long shadow: the European Union, the United Nations and the Changing Framework
of Ireland’s International Relations’ in Eoin Carolan (ed) The Constitution of Ireland: Perspectives and Prospects
(Bloomsbury Professional 2012) 398.
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Fennelly goes on to state that ‘[t]he basic holding of Crotty is that international agreements, which
involve a significant transfer of the sovereign power from the State to international organisations, must
62
be put to the People in a referendum’.
These scholarly interpretations of Crotty emphasise the case as an authority for the test of treaty
comparison – and therefore the doctrine of implied amendment – in two ways. First, by establishing in
scholarship the expectation of a rolling point of reference, such that later treaties would be measured
for comparison with the most recently ratified treaty, it paves the way for the more widespread use of
treaty comparison. Second, by refraining from underscoring the fact that the Title III decision was
based on a test of constitutional consistency rather than treaty comparison, it serves to attract
attention away from the test of treaty comparison and the formal requirements of constitutional
amendability procedure in Article 46.
1.4
Judicial Interpretation of Crotty
63
The case of McGimpsey v Ireland concerned a constitutional challenge to the Anglo-Irish Agreement
of 1985 based on the following two claims: (1) that the Agreement was inconsistent with Articles 2 and
64
3 of the Constitution and (2) that the Agreement fettered the executive power of the State in a
65
manner that was contrary to the Constitution. The first claim clearly invited the courts to use a test of
constitutional consistency, which they did without any hesitation. The High Court and Supreme Court
both accepted that an international treaty could be examined for the extent to which it was
inconsistent with the Constitution, and that if inconsistency were found, ratification would require a
66
67
68
constitutional amendment. The High Court and the Supreme Court examined the clash in detail,
discussing competing interpretations of the Irish constitutional provisions as well as the provisions of
the Anglo-Irish Agreement, before reaching the conclusion, based on the interpretations of each that
they deemed to be most defensible, that there was no inconsistency. Specifically, Barrington J ruled
that:
[I]n article 1 of the Agreement the two Governments merely recognise the situation on the
ground in Northern Ireland (paragraph (b)), form a political judgment about the likely course of
future events (paragraph (a)), and state what their policy will be should events evolve in a
69
particular way, (paragraph (c)).
This, he declared, was in no way inconsistent with either Article 2 or Article 3 of the Constitution. In
the Supreme Court, Finlay CJ approved of this reasoning, and ruled ‘in complete agreement’ with
Barrington J’s conclusion, adding that:
There can be no doubt but that the only reasonable interpretation of article 1, taken
conjunction with the denial of derogation from sovereignty contained in article 2, para. (b),
the Anglo-Irish Agreement is that it constitutes a recognition of the de facto situation
Northern Ireland but does so expressly without abandoning the claim to the re-integration
70
the national territory.
62
in
of
in
of
ibid 400.
McGimpsey v Ireland (n23).
64
‘[T]he Agreement, by recognising the legitimacy of the present constitutional arrangements in respect of
Northern Ireland, violates Articles 2 and 3 of the Constitution’, per Barrington J, ibid 578.
65
‘[I]n as much as the Agreement establishes an intergovernmental conference and secretariat, it fetters the
power of the Government to conduct the external affairs powers of the state under Articles 28 and 29 of the
Constitution and that, in this respect, the Agreement has many features in common with Title III of the Single
European Act which was found to be unconstitutional on this account in Crotty v. An Taoiseach [1987] IR 713’ per
Barrington J in McGimpsey v Ireland [1988] IR 567, 578. See also 588ff.
66
Barrington J in the High Court affirmed that ‘the actions of the Government may be open to judicial review’ and
that ‘the Government must be free to formulate policy even if the implementation of its policy may involve asking
the people to consent to an amendment to the Constitution’: McGimpsey v Ireland ibid 581.
67
ibid 583-587.
68
McGimpsey v Ireland [1990] 1 IR 110, 115-121.
69
McGimpsey v Ireland (n65) 586.
70
McGimpsey v Ireland (n68) 120-121.
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That consistency between the Anglo-Irish Agreement and Articles 2 and 3 of the Constitution having
been established, both the High and Supreme Courts moved to examine the claim that executive
power had been fettered, and used the test of treaty comparison to do so.
The second challenge was that the Agreement fettered the executive power of the Government in a
72
manner that was unconstitutional. In the High Court, Barrington J seemed to consider that both the
Title II and Title III decisions in Crotty were determined using the ‘essential scope and objectives’ test
when he asserted in the following passage that:
The question in Crotty v. An Taoiseach was whether the Single European Act was merely an
evolution of the communities within the terms of their original objectives or whether it created
such a transformation in the communities that it was necessary that the Irish government
should again consult the Irish people before ratifying it. The High Court thought that the Single
European Act was merely an evolution within the original objectives of the communities and
that no fresh mandate was therefore necessary. The Supreme Court … [held] that Title III of
the Single European Act dealing with European co-operation in the sphere of foreign policy
73
introduced a new element which required a fresh mandate from the people.
Based on this hapless premise that the test of treaty comparison had been used in the Title III
decision, and applying that same test to the Anglo-Irish Agreement, Barrington J proceeded to identify
one obvious dissimilarity between the SEA and the Anglo-Irish Agreement which was concerned with
the number of treaty signatories: ‘The question we are dealing with here is totally different. We are not
dealing with a multilateral treaty conferring powers on supranational authorities. We are dealing with a
74
bilateral treaty between two sovereign governments.’
Another point of contrast which is identified in the Supreme Court decision of Finlay CJ concerns the
75
‘frameworks … and structures’ of implementation which are laid down in the Anglo-Irish Agreement
in comparison to those of the SEA. Explicitly examining the question of whether the two treaties ‘were
76
of a similar character’, he concluded that they were not, on the basis that under the Anglo-Irish
Agreement, the Irish Government ‘is entirely free’ when putting the Agreement into practice ‘to do so
in the manner in which it, and it alone, thinks most conducive to the achieving of the aims to which it is
77
committed’, whereas the terms of the SEA ‘could oblige the Government in carrying out the foreign
policy of the State to make the national interests of the State, to a greater or lesser extent,
78
subservient to the national interests of other member states’. For these reasons, the test of treaty
comparison concluded with the determination that ‘there is a vast and determining difference between
79
the provisions of this Agreement and the provisions of the Single European Act’.
The legal analysis in this part of the McGimpsey judgment marks a new point of departure in terms of
the issues being analysed in this paper, since it marks a decisive shift in the use of the test of treaty
comparison taking it outside of the confines of Article 29.4.3 which related only to European law. On
the authority of McGimpsey this test of treaty comparison and therefore the doctrine of implied
amendment can be applied not only for successive treaties that are agreed in the context of European
integration, but also in the context of international treaties more generally. This transplantation takes
place without recognition of the fact that the reason given for the establishment of the ‘essential scope
or objectives’ test of treaty comparison in the Title II decision in Crotty was entirely specific to the fact
that membership of the European Economic Community entailed the expectation of further European
71
Quite obviously, this is an incomplete use of the test of constitutional consistency; in fact, if the courts had
tested the Anglo-Irish Agreement for consistency with the entire Constitution, investigation of the second
challenge would have been unnecessary and redundant.
72
McGimpsey v Ireland (n68) 121.
73
McGimpsey v Ireland (n65) 589.
74
ibid. For criticism of this application of the test of treaty comparison, see Gerard Hogan, ‘The Supreme Court
and the Single European Act’ (1987) 22 Irish Jurist 55; and Hogan and Whyte (n59) 511. In the latter, the authors
note that the comparison ‘has, quite properly been derided by academic commentators’.
75
McGimpsey v Ireland (n68) 121.
76
ibid.
77
ibid.
78
ibid 122.
79
ibid.
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integration. Moreover, in the absence now of an index of comparison – since the ‘essential scope or
objectives’ test cannot apply in the context of ‘ordinary’ international treaties – the High Court and
Supreme Court identify two new indices: the number of signatories and the frameworks and structures
of implementation, respectively. The importance of McGimpsey can sometimes be overlooked, but for
the purposes of this article it is a vital development for the reason that it marks a decisive break by
using a test of treaty comparison outside of the context of Article 29.4.3, and with indices other than
the ‘essential scope or objectives’ of previously ratified treaties. On the basis of the authority that it
provides, when the courts came to analyse the Treaty establishing the European Stability Mechanism
(which is also an international treaty, although it has been signed by some of the Member States of
the European Union) it will not seem surprising if the courts use a test of treaty comparison
notwithstanding that the ratification of this Treaty takes place outside of confines of Article 29.4.3.
2.
Pringle v Government of Ireland
To recapitulate on the status quo ex ante as the courts face the enormous challenge of adjudicating
the Pringle case: there are two kinds of tests that have been endorsed and used by the Supreme
Court in the two most relevant precedents of Crotty and McGimpsey. The first, the test of treaty
comparison, focusses on comparing and contrasting the treaty under investigation with a previously
ratified treaty. In Crotty, this test was used only in the Title II decision and only in the context of Article
29.4.3 which was interpreted as espousing an ‘essential scope or objectives’ test which could be
employed to determine if European integration had progressed beyond the mandate given by the
people in their decision to ratify the Treaties of Rome. In McGimpsey, this test was used outside of
the context of European integration, and the points of comparison in that case centred on the number
of treaty signatories (in the High Court) and the method of implementation (in the Supreme Court).
The second test, the test of constitutional consistency, focusses on whether or not the treaty in
question is compatible with the constitution; a finding of incompatibility will necessitate a constitutional
amendment, which itself requires a popular referendum. In Crotty, this test was used by all the judges
in their Title III decisions, although the minority judges confined themselves to only examining
consistency with certain privileged constitutional provisions. In McGimpsey, the courts were only
asked to examine the Anglo-Irish Agreement for consistency with two constitutional provisions, which
they did.
In the High Court decision in Pringle, Ms Justice Laffoy began by endorsing a test of consistency
based on Supreme Court decision in Crotty, which entailed that: ‘there are implicit restraints in the
Constitution in relation to the manner in which the Government may exercise its power in relation to
81
external relations and, in particular, in relation to entering into treaties with other nations’. Explicitly
rejecting the notion that the ratio of Crotty was specific to external relations, she held that: ‘What was
at issue in the Crotty case was sovereignty in the conduct of external relations. In principle, and on
the authority of the decision in the Crotty case, there is similar constitutional restraint in relation to
82
other areas, such as economic and monetary policy …’
83
From the Supreme Court decisions, it is made clear that the appellant did not argue that the ESM
Treaty was, of itself, inconsistent with the provisions of the Constitution which indicate that the
financial resources of the State should be allocated according to the terms of the Constitution (Article
11) and that a particular role is reserved to the Dáil, in this regard (Articles 17, 20, 21, 22, 26), in line
with the time-honoured principle ‘no taxation without representation’. To the contrary, the submissions
focussed on the concept of sovereignty and on the proscription on its abdication as determined in the
84
Crotty decision. Denham CJ (with whom Clarke, Fennelly, McKechnie, Murray and O’Donnell JJ all
85
agreed ) summarised the arguments being made by the appellant as the submission ‘that the totality
80
Crotty v An Taoiseach (n22) 767.
Pringle v Government of Ireland (n24) para 118.
82
ibid.
83
Pringle v Government of Ireland [2012] IESC 47. All the decisions of the Supreme Court judges are available at
<http://www.courts.ie/__80256F2B00356A6B.nsf/0/6992E410C5A620E180257A9C00527B28?Open&Highlight=0
,pringle%20,~language_en~> accessed 25 June 2014.
84
ibid, Judgment of Denham CJ
<http://www.courts.ie/__80256F2B00356A6B.nsf/0/DB079F79BE08A50E80257A9C004F4975?Open&Highlight=
0,pringle%20,~language_en~> accessed 25 June 2014.
85
Although Clarke, McKechnie and O’Donnell JJ all wrote their own concurring judgments also.
81
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86
of the provisions of the ESM Treaty constituted a trenching on the sovereignty of the State’.
McKechnie J asserted that the constitutionality challenge in Pringle ‘is in effect a single precedent
one: is the State’s ratification of the ESM Treaty prohibited by Crotty? In other words, has the
Government, in the exercise of its executive authority in the field of foreign affairs, infringed the
87
limitations imposed on that power, when referenced to Crotty?’ In case of any remaining doubt, he
clarified that ‘the suggested action of the Government is not challenged by virtue of any express
88
constitutional provision’. Clarke J, however, identifies five claims in total being made by the
89
appellant: three of these are outside the scope of this article; one concerned with sovereignty as
noted in the other judgments, and, most interestingly, the last of which he called ‘the power transfer
claim’ which he described as ‘the claim that the legislation enacted by the Oireachtas to implement
the ESM Treaty in Ireland … involved a constitutionally impermissible transfer of power from the
90
Oireachtas (and in particular the Dáil) to the Minister for Finance’. However, since this was an
internal matter – in that it was raised in the context of the constitutionality of the legislation, rather than
the ESM Treaty as such – he considered that it ‘did not seem … to be of the same level of urgency as
91
the other claims’.
Thus all the majority judgments focus with a very heavy emphasis on the Crotty case, and consider
the potential threat to sovereignty posed by the ESM Treaty in the context of its impact on the
Government’s capacity to freely engage in external relations. As will be demonstrated in detail below,
these majority judgments become quite consciously engrossed in a test of treaty comparison, and
nine new indices of treaty comparison are identified. The sole dissenting judge, Hardiman J, declared
his intention from the outset to engage in a test of constitutional consistency, and outlined the steps
as follows:
… first, to consider the nature of the constitutional constraints on the Government in ratifying
a treaty such as that in question here, secondly, to consider the ESM Treaty with a view to
determining and thirdly, whether adherence to it without the authority of the people in a
92
referendum is consistent with the Constitution or not.
The use of the test of treaty comparison in the judgments of the majority judges will be addressed
first, before the focus turns to Hardiman’s examination of constitutional consistency.
2.1
The Test of Treaty Comparison
93
Having established the centrality of the Crotty case to her decision, and having outlined the decision
94
95
in that case, Denham CJ deduced certain principles therefrom, including that:
86
Pringle v Government of Ireland (n83) para 10.ii.
ibid. Judgment of McKechnie J
<http://www.courts.ie/Judgments.nsf/f69fbd31c73dda2580256cd400020877/e48b3cbe39e001c680257aa10054b
93a?OpenDocument> accessed 25 June 2014. Here it seems that he envisages only limitations on executive
authority as potentially problematic. O’Donnell J seems to concur when he says: ‘The central issue in this case is
whether or not entry into an international treaty containing provisions such as those contained in the ESM Treaty
could contravene the constitutional limitations on the exercise of Executive power in the field of foreign affairs
identified in Crotty v. An Taoiseach [1987] IR 713’: Judgment of O’Donnell J in Pringle v Government of Ireland
(n83) para 2.
88
Pringle v Government of Ireland (n83) per McKechnie J.
89
ibid per Clarke J para 2.2. Judgment of Clarke J
<http://www.courts.ie/Judgments.nsf/f69fbd31c73dda2580256cd400020877/3dd6f2818aca560080257a9c005164
b5?OpenDocument> accessed 25 June 2014. The claims which will not be discussed here are the claims that he
calls ‘the ESM Treaty claim’, ‘the Council Decision claim’ and ‘the injunction claim’.
90
ibid para 2.2.
91
ibid para 2.12.
92
Pringle v Government of Ireland (n83) per Hardiman J. Judgment of Hardiman J
<http://www.courts.ie/Judgments.nsf/f69fbd31c73dda2580256cd400020877/8ae6fa4e7968f7dd80257aa1005444
d7?OpenDocument> accessed 25 June 2014.
93
Pringle v Government of Ireland (n83) per Denham CJ, Parts 2, 3, 5, 6.xvii, 10 and 11.
94
ibid per Denham CJ, Part 14.
95
ibid per Denham CJ, Part 15. Specifically, in para 15.v she stated that: ‘the Constitution empowers the
Government to exercise executive policy, which includes a decision to enter into a treaty as a matter of policy.
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‘the Court held that Title III of the SEA would bind the State to concede part of its sovereignty
in foreign policy by conducting foreign policy in the future, future decisions on foreign policy,
without reference to the common good, and that such a step required authorisation by the
96
people through a referendum.
Having thus identified the ratio in Crotty by reference to the specifications of Title III of the SEA, the
97
Chief Justice went on to apply the Crotty principles, finding that whereas in Crotty, the issue ‘was
the future conduct of external relations of the State, i.e. the executive power of the sovereign State to
98
decide future external relations’, the ESM Treaty did not (as the appellant had argued) indicate that
99
‘the State has abdicated some of its decision-making competency in foreign policy’. The ESM Treaty
ratification was therefore fundamentally different from that of the SEA, according to Denham CJ, for
many reasons. First, ‘it is clear that the relevant policy was determined by the Irish executive and
legislature. The State has not ceded policy making for the future. The State has not ceded power to
another institution to enable the creation of policy in the future’; second there is no transfer of ‘the
power to increase the State’s financial contributions’; thirdly, there has not been ‘any attempt by the
Government to make a binding commitment to alienate to other States the conduct of foreign
relations’; nor, fourthly, ‘a fundamental transformation or diminution of sovereignty’; and, fifthly, there
was no ‘agreement to subordinate or submit the exercise of the powers bestowed by the Constitution
100
to the interests of other States’. Of these five, her particular focus, both in identifying principles from
the Crotty case and in applying those principles to the ESM Treaty, is concentrated on (1) the future
policy-making power of the State and (2) the alienation of the conduct of foreign relations. These are
the first two indices for the application of the test of treaty comparison in the judgment; indices that
are endorsed also by her colleagues who concur with her judgment.
101
Mr Justice McKechnie makes numerous references in his judgment
to the need for comparative
analysis between the provisions of Title III of the SEA and the ESM Treaty. In his view, a very detailed
examination of the reasoning of the Crotty decision can be left to one side, because the comparative
102
analysis of the treaties themselves is sufficient to yield the judicial outcome in the current case.
Further, he asserts that, in any case, ‘[a]ll of the judicial observations made in Crotty must obviously
103
be viewed against the Treaty provisions which the Court was called upon to examine’.
His
comparative analysis of the treaties yields two further indices for the test of treaty comparison. He
focusses in particular on the contrast between the abstract, open-ended framework laid out in Title III
SEA and the level of technical detail in the rules of the ESM Treaty. In his view:
Title III of the SEA constituted an abstract framework in many fundamental respects. It lacked
specificity and failed to set out or provide parameters either by reference to the formulation or
implementation of policy. It set broad and distant targets which, if achieved, would bring about
significant changes in constitutional structure … the outside boundaries were ill-defined as
However, in Crotty there was a specific aspect of the treaty in issue which took it outside the norm. As was stated
in Crotty, the Government may not abdicate its power as the executive organ of the State. If such a decision is
required it may be taken only by the people, as the ultimate authority in the State’.
96
ibid para 15.vii.
97
ibid per Denham CJ para 17.
98
ibid per Denham CJ para 17.ii.
99
ibid per Denham CJ. para 17.ix.
100
ibid para 17xii.
101
ibid per McKechnie J.
102
ibid. He maintained that while it was necessary to refer to the detail of Crotty ‘without which a full
understanding of the decision would obviously be lacking’, nonetheless a detailed examination of Crotty was
unnecessary in the present case because ‘for the fundamental reason that, at a comparative level, the subject of
the investigation in that case, namely Title III of the Single European Act (SEA) is wholly distinguishable from the
provisions of the ESM Treaty’. Later in the judgment, he noted that ‘when a comparative analysis is conducted
between Title III of the SEA and the provisions of the ESM Treaty, the seismic distinction between both, becomes
instantly demonstrable’. Later again, having pointed out some dissimilarities between the two treaties, he remarks
that ‘if time and space permitted, the laying out of its terms in full would immediately convey the disparity between
[the ESM Treaty] and Title III SEA’.
103
ibid.
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was the timescale and structures envisaged … In all, it was very much a journey into the
104
unknown.
To the contrary, he considers that the ESM Treaty establishes ‘an international financial institution,
financed by contributions from contracting states as well as having an ability of itself to raise funds on
the market’ and the entire structure of which
is set out, commencing with the purpose of its establishment, its memberships, its
governance – which includes voting rights of contracting states, how decisions are made … and its initial capital which is maximised at a certain level with each contracting state’s
105
contribution being calculated or capable of ready calculation.
This sharp contrast in terms of the content of the provisions in the two treaties McKechnie J puts
across quite succinctly in the following way: ‘At the point of principle what is strikingly different
between the provisions of the ESM Treaty and Title III of SEA is the level of detail underpinning the
106
former and the absence of such detail regarding the latter.’
Later in his judgment he describes the dissimilarity in a different way, stating that: ‘the fundamental
difference … is the fact that the ESM Treaty is essentially policy implementation and not policy
107
making’, however this point of contrast is not elucidated any further in his judgment. Assuming that
the question of the level of abstraction would not be entirely co-extensive with the question of whether
108
a treaty is policy-making or policy-implementing, it seems best to think of these as two new indices
for the test of treaty comparison. In sum, then, McKechnie J embraces the test of treaty comparison
quite unreservedly, and identifies the third and fourth indices by which such comparison can be made:
(3) the level of abstraction and (4) whether the treaty is policy-making or policy-implementing.
In the judgment of O’Donnell J, a fifth index is identified by the judge to be used in the test of
comparison between the ESM Treaty and Title III SEA. Of all of the judges, Mr Justice O’Donnell
seemed to accept the doctrine of implied amendment in the following passage, when he stated,
109
having outlined the various constitutional provisions under consideration, that:
From these provisions may be drawn the unremarkable conclusion that the Constitution
contemplates that the conduct of the State’s foreign relations will necessarily involve the
making of binding agreements with other states, which agreements could have financial
110
consequences for the State, and on occasions require an alteration of its domestic law.
Whilst, the phrase ‘domestic law’ does not specifically imply ‘constitutional provisions’, neither does it
preclude such an interpretation, and given the context in which it arises, it can be understood as being
either deliberately ambiguous or intending to include that implication. O’Donnell J’s analysis of the
Crotty decision is that it turns on whether or not Title III SEA created a single European-wide foreign
111
policy, and his understanding of the majority decision on Title III is that ‘it is perhaps clear why the
104
ibid.
ibid.
106
ibid.
107
ibid.
108
One can easily imagine that policies could be ‘made’ either in abstract or in detailed terms; and similarly that
implementation could be provided for either in abstract or in detailed terms.
109
Pringle v Government of Ireland (n83) per O’Dennell J, para 5. He cited art 29.5 regarding international
agreements, art 28.4.1 regarding the Government’s accountability to the Dáil, arts 17, 20, 21, 22 & 28.7 on the
Dáil’s role in public finances, and also arts 29.6 and 15.2.1 on the legislative role of the Dáil.
110
ibid.
111
ibid paras 11, 13, 19. For example, at para 11, he stated that: ‘The minority, comprised of Finlay CJ. and
Griffin J. accepted that if the SEA created a form of political union then there could be no doubt that, in the words
of Finlay CJ. at p.771 “it would constitute an alteration in the essential scope of and objectives of the
Communities to which Ireland could not agree without an amendment to the Constitution.” However the minority
considered that this point had not yet been reached. The majority for its part, in the words of Henchy J.,
considered that the SEA was a significant and decisive step along a path of gradualism towards that objective.
There was no dispute therefore that to agree to adopt a single European foreign policy would be inconsistent with
the Irish Constitution since the Irish Government would no longer be exercising that power alone. The question
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majority considered that the SEA was at the very minimum a “subordination” of Irish sovereignty’
because it ‘affected the entirety of the foreign policy of the State and not simply one area of agreed
112
cooperation’. In the paragraph immediately following, he reasons that, by comparison:
[T]he provisions of the ESM are distinct from, and in constitutional terms markedly less
significant than, the provisions of the SEA. The ESM does not concern Ireland’s foreign policy
as a whole. Instead it relates solely to a decision by Ireland to invest, alongside other member
states, in an institution which may make those funds available in accordance with the terms
113
and criteria established by the Treaty, to contracting states, including Ireland.
The index that O’Donnell J contributes to the operation of the test of comparison is (5) whether foreign
114
policy as a whole is affected by the treaty in question.
115
His judgment engages both the test of
The final judgment for the majority is given by Clarke J.
consistency (which he explicitly endorses in principle) and the test of treaty comparison (which he
develops and applies in practice in order to reach his conclusion). His principled endorsement of the
test of consistency is to be seen in the passage which states that:
It is important to note, therefore, that the Constitution does not require, as a matter of
principle, that all international agreements be put to the people for approval through a
referendum. It is only where an international agreement (either indirectly or by design)
breaches the terms of the Constitution as it then stands that there is a requirement for an
116
appropriate amendment to be made to the Constitution.
which did divide the Court was whether that point had been reached’. Note that this puts him at odds with
McKechnie J, who talks about the abstract open-ended commitment.
112
Pringle v Government of Ireland [2012] IESC 47 per O’Donnell J para 19 (emphasis added).
113
ibid para 20 (emphasis added). The paragraph continues: ‘The decision to participate in the ESM was in my
view an exercise in sovereignty rather than an alienation of it, and was taken by the organ of Government to
which such decisions are consigned by the Constitution. In one sense it is a one off decision by Ireland to invest
up to a defined maximum pursuant to a scheme which prescribes the countries to whom funds can be lent, the
procedure under which any decision to lend will be made, and the criteria for such a decision. It is no more a
breach of Irish sovereignty asserted under the Constitution and defended in Crotty, than a person who decides to
invest a large portion of his or her wealth in a limited company with a defined investment objective could be said
to lose his or her status as a citizen’.
114
Before moving on to the final judgment for the majority, it is worth noting in passing that O’Donnell J does in
some small way engage with the test of consistency insofar as he addresses, albeit in quite a cursory way, two
arguments that sought to demonstrate that the ESM Treaty was incompatible with the Constitution for the reason
that it committed a large sum of Irish monies to be expended outside of Ireland and the reason that it involved the
expenditure of Irish monies for purposes quite unconnected to the furthering of the common good of the Irish
people ibid para 23. However, both of these arguments he dismissed in short order: Pringle v Government of
Ireland (n83), per O’Donnell J, paras 24 and 25.
115
Pringle v Government of Ireland (n83) per Clarke J.
116
ibid para 4.19. Later, at para 4.25, he stated ‘the overall position’, which in his view is that: ‘The Government
enjoys a wide discretion, under Article 29.4, to enter into international treaties subject only to the obligation to
obtain the approval of the Dáil, if there is a commitment to financial expenditure, or that of the Oireachtas, if it is
considered necessary to change domestic Irish law so as to comply with obligations undertaken by the treaty
concerned. The limit on the discretion which the Government holds arises where the relevant treaty involves
Ireland in committing itself to undefined policies not specified in the treaty and in circumstances where those
policies, which Ireland will be required to support, are to be determined not by the Government but by institutions
or bodies specified in the treaty. It is an abdication, alienation or subordination of policy formation and adoption
which is not permitted. A transference of the means of implementing a policy agreed by the Government, and
specified in the treaty concerned, to an appropriate implementation institution or body may be permitted provided
that it does not go so far as to amount, in substance, to an abdication, alienation or subordination of the role of
the government under the Constitution’. Furthermore, at para 5.15, he clarified that this adjudication is made as a
matter of law, and that any realpolitik considerations are irrelevant: ‘There are many circumstances in which both
the Government and the Oireachtas may come under significant practical political pressure, either domestically or
internationally, to adopt certain measures. That is the way of the world. However, the architecture of the Irish
Constitution is concerned with where the final decision lies. The fact that institutions of government may, as a
matter of practical politics, from time to time have to make decisions or bend their policies in the direction of the
wishes of other countries does not, of itself, breach that model’.
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Nonetheless, Clarke J uses a test of treaty comparison in order to ascertain if there has been a
117
breach of the Constitution through an ‘impermissible transfer of sovereignty’. In his judgment, the
test of treaty comparison does not emerge from a discussion on the particularities of the SEA and the
ESM Treaty. To the contrary, he commences with an abstract discussion of the features of treaties in
general with a view to ascertaining which kinds of features would give rise to a conclusion that an
impermissible transfer of sovereignty was entailed thereby. Using the analogy of freedom to contract
(a person may, by signing an employment contract, restrict their rights without losing their freedom,
118
whereas a person in indentured servitude could not be said to be free), Clarke J draws distinctions
between different kinds of international treaties. Some international treaties establish ‘bodies or
119
institutions with a greater or lesser permanence’,
and sovereign nations who enter into these
arrangements can be expected to honour the obligations they impose, even though that entails ‘a
120
narrowing of the freedom to act in the future’. Other treaties, however, require states to take on a
commitment that ‘amounts to such a significant narrowing of future policy options that it can properly
be said that there has been a transfer or pooling of sovereignty’, particularly when the policies in
121
question are undetermined by the treaty but in the future discretion of those bodies or institutions.
Against this background, Mr Justice Clarke lays out the parameters for the test to be applied as
122
turning ‘on the nature of the commitments entered into’.
Examining the nature of the commitments entered into in the case before him, Clarke J held in
relation to the ESM Treaty that, first, ‘there is a very real sense in which the obligations … are one off
123
and will occur in the very near future’,
although he admitted that the Treaty is ‘permanent in the
124
sense that monies contributed … must be made available ... indefinitely’;
that, secondly, while
‘Ireland’s obligations are current and immediate’, the consequences of those obligations ‘may be
125
126
indefinite’; that, thirdly, there is a single purpose rather than many multiple purposes; and that,
127
fourthly, decisions are not always taken unanimously. Through this analysis Clarke J identifies four
new indices for the application of the test of treaty comparison, which can be added to those five
previously identified by his colleagues. Those are (6) whether the treaty is permanent or not, because
if it is permanent that tends to show a greater transfer of sovereignty; (7) whether the commitments
are indefinite or finite, because if they are indefinite that tends to show a greater transfer of
sovereignty; (8) whether it has multiple purposes or a single purpose, because if there are multiple
purposes that tends to show a greater transfer of sovereignty; and (9) whether decisions are taken by
majority or by unanimity, because majority decision-making entails a greater transfer of
128
sovereignty. It is important to recognise that although Clarke J concluded that the ESM Treaty was
129
‘an exercise in sovereignty, rather than an abdication or transference of sovereignty’,
the ESM
Treaty does not yield a perfect score. His analysis acknowledges that the treaty is permanent; that the
commitments are indefinite; and that decisions are not made unanimously (i.e. that on three of the
four new indices, the ESM Treaty does indicate a significant transfer of sovereignty).
117
ibid para 4.20.
ibid paras 8.3, 8.4, 8.5.
119
ibid para 8.6.
120
ibid para 8.7.
121
ibid.
122
ibid para 8.8. Having determined the nature of the commitments, the test goes on to look at ‘the extent to
which those commitments can truly be said to involve an abdication of the powers conferred by the Constitution,
an alienation to others of such powers or the subordination of those powers to the interests of others’, which
seems to be subsidiary test of consistency, albeit that, in its application, the second part did not figure as an
independent step in the analysis, and was instead presented as the conclusion in para 8.13, when the judge
held, having completed his comparison, that: ‘characterised in that way, it seems to me that the ESM Treaty is …
an exercise in sovereignty rather than an abdication or transference of sovereignty’.
123
ibid para 8.9.
124
ibid para 8.11.
125
ibid.
126
ibid.
127
ibid.
128
Although not necessarily an impermissible transfer of sovereignty, of course since in fact both the Crotty
decision on Title II SEA and the Pringle decision point in the opposite direction: in neither case did lack of
unanimity prevent the ratification of those treaties at legislative level.
129
Pringle v Government of Ireland (n83) per Clarke J para 8.13.
118
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Having thus examined the ESM Treaty as compared with other treaties in general, Mr Justice Clarke
returned to Crotty and applied a test of treaty comparison that examined the differences between Title
130
III SEA and the ESM Treaty.
He found that the obligations under Title III entailed ‘a permanent
obligation on the State to deal, in all respects, with its foreign policy in a manner designed to promote
the formulation of a common European foreign policy’, and continued:
It seems to me that there is a very significant difference indeed between those types of
obligations and those contained in the ESM Treaty. As pointed out the ESM Treaty involves a
once-off, albeit significant, commitment to set up an institution designed to provide support for
the euro … The ESM Treaty has a narrow, if important, policy objective to which an
immediate commitment of substantial funds is made with the attainment of the specified
131
objectives being left to a Board of Governors on which Ireland will have a representative.
The ESM Treaty is therefore ‘a long way short’ of the kind of sovereignty transfer that would be
132
unconstitutional.
In summary, then, the test of treaty comparison has been applied in the Supreme Court by reference
to nine different indices: (1) the future policy-making power of the State; (2) the alienation of the
conduct of foreign relations; (3) the level of abstraction in the treaty; (4) whether the treaty is policy
making or policy implementing; (5) whether foreign policy as a whole is affected by the treaty in
question; (6) whether the treaty is permanent or not; (7) whether the commitments are indefinite or
finite; (8) whether the treaty has a single purpose or multiple purposes; (9) whether decisions are
taken by majority or unanimity. Some of these, taken in isolation, might yield ‘false negatives’ eg
Denham CJ’s focus on the cession of policy making in the future presumably does not intend to allow
that the State can yield its policy making function with immediate effect; McKechnie’s focus on the
problems of a treaty written at a high level of abstraction does not presumably mean to imply that a
treaty which gives away the same powers, but explains in great detail how those powers are to be
transferred would be more palatable; Clarke J’s focus on whether there is a single purpose
presumably does not intend to allow that a treaty with the single purpose of establishing a federation
or a military union could be ratified without constitutional amendment. It seems best to view these
indices as Clarke J does in his judgment as features to watch out for, albeit that they can yield
conflicting results inter se and even in preponderance do not seem to make a conclusion inevitable.
For the purposes of this paper, the interesting thing about all of these judgments is that they do not
determine, or even advert to, the question of the consistency of the ESM Treaty with Articles 1, 5, 6,
11, 17, and 28.4 of the 1937 Constitution. It is only in the dissenting judgment of Mr Justice Hardiman
that this question arises, and if he is right in his analysis, then the ratification of the ESM Treaty has
also caused the Irish Constitution to be amended outside of the formal constitutional amendability
procedure.
2.2
Test of Constitutional Consistency
133
to ‘constitutional constraints or restraints on the
Hardiman J referred early in his judgment
Government, in the conduct of its external relations’, those being the justification for the courts to
134
review the result of the activity of the Government. Having examined Articles 1, 5, and 6, he also
adopted definitions of the key terms ‘inalienable’, ‘indefeasible’, and ‘sovereignty’, including by
reference to the (legally superior) Irish text of the Constitution. Rather than interpreting Articles 1, 5,
and 6 through the lens of the Crotty decision, he explicitly pointed out that, to the contrary:
130
ibid para 8.14.
ibid.
132
ibid para 8.15. Nonetheless, he stated obiter that: ‘In passing I should note that, in my view, there may be
circumstances in which a permanent and irreversible commitment to a very wide ranging set of policies in an
important field, such that the Government lost the ability to ever change those policies in the future, might (even
though the policies were specifically identified) cross the boundary of involving an impermissible ceding or
pooling of the type of sovereignty found in the Irish constitutional model ... I would leave to another case the
question of determining with precision where any such boundaries might lie. For the purposes of this case it
seems to me that the ESM Treaty can be distinguished from the aspects of the SEA which were under
consideration in Crotty in the manner which I have already identified’.
133
ibid.
134
ibid.
131
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Crotty after Pringle: The Revival of the Doctrine of Implied Amendment
Maria Cahill
It is … aspects of Crotty that render necessary the close analysis of Article 1, 5 and 6 of the
Constitution … in order to establish the nature and scope of the right there recognised to
inhere in our State, and thus to establish whether or not this right has been ‘fettered’ by the
ESM Treaty.
Considering the judgments of the majority in Crotty, he focussed on the dicta of Henchy J which,
based on Article 6.1 of the Constitution, identified the common good of the Irish people referred to
therein as ‘the ultimate standard by which the constitutional validity of the conduct of foreign affairs by
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the government is to be judged’. Hardiman J noted that this ‘is inconsistent with a commitment to
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act in the interest of or, in a manner decided by some other nation, or some group of Nations’. He
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then cited Henchy J’s statement in Crotty concerning the altered point of reference that the SEA
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imposed on the conduct of Irish foreign policy, identifying it as ‘a profoundly important passage’.
Furthermore, Hardiman J referenced another passage in which Henchy J stated that: ‘[t]o be bound
by a solemn international Treaty to act thus is, in my opinion, inconsistent with the obligations of the
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government to conduct its foreign relations according to the common good of the Irish people’. For
being inconsistent with the common good of the Irish people, it diminished sovereignty and was
therefore contrary to the Constitution. Identifying this passage as ‘strongly suggestive’ of a ratio for
Crotty, Hardiman J also highlighted a consistent passage in Hederman J’s Crotty judgment in which
Hederman J held that: ‘The State’s organs cannot contract to exercise in a particular procedure their
policy making roles or in any way to fetter powers bestowed unfettered by the Constitution. They are
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the guardians of these powers – not the disposers of them’.
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This Hardiman J took as another ‘fair epitome of the ratio of Crotty’. It seems that, to his mind, the
majority judges in Pringle pay insufficient regard to the right of the people under Article 6 ‘as opposed,
for example, to the Government, the Oireachtas, or the European Union’, in final appeal, to decide all
questions of national policy. He further observed that he would regard ‘an interpretation of Crotty
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which undermines this basic principle as emptying that great case of meaning’.
Nonetheless, Mr Justice Hardiman’s judgment does not focus unduly on the Crotty decision, since he
is concerned with the constitutional provisions that may be at stake and against which the ESM Treaty
needs to be examined for consistency. Apart from Articles 1, 5, and 6 which had already been
identified, he also refers to Article 11, which provides that all revenues of the State ‘shall form one
fund’ and ‘be appropriated for the purposes … determined … by law’; Article 17 which gives Dáil
Éireann specific powers in relation to the collection and expenditure of revenue; Article 28.4 which
makes the Government responsible to the Dáil, prescribes that cabinet is collectively responsible for
its decisions, and requires that the Estimates of Receipts and Expenditures shall be presented by the
Government to the Dáil. Having then discussed the permanence of the ESM Treaty, together with its
provisions and operation, in some detail, he concludes that ‘the terms of that Treaty are such that
those monies are to be expended for a purpose quite different to that of furthering the common good
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Crotty v An Taoiseach (n22) 787.
ibid.
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Hardiman J cites the following passage taken from Henchy J’s judgment in Crotty: ‘Thus, for example, in
regard to Ireland, while under the Constitution the point of reference for the determination of a final position on
any issue of foreign relations is the common good of the Irish people, under Title III (of the Single European Act)
the point of reference is required to be the common position determined by Member States. It is to be said that
such a common position cannot be reached without Ireland’s consent, but Title III is not framed in a manner
which would allow Ireland to refuse to reach a common position on the ground of its obligations under the Irish
Constitution’: Crotty v An Taoiseach (n22) 787 (emphasis added by Hardiman J).
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Pringle v Government of Ireland (n83), per Hardiman J. He further stated that: ‘The analysis based on an
altered “point of reference” is extremely suggestive. The last passage quoted is also a reminder that, while the
Single European Act bound Ireland to adopt as its “point of reference” the common position determined by
Member States, nevertheless (under Title III) that common position could not (then) be arrived at without Ireland’s
consent. But when we come to examine the European Stability Mechanism it will be seen that, at least in one
important respect, an effective position amongst the members of the Stability Mechanism can indeed be arrived
at without any regard to Ireland’s position. To that extent, the position in the present case, by comparison with
that in under the SEA, is a fortiori’.
139
ibid.
140
Crotty v An Taoiseach (n22) 794.
141
Pringle v Government of Ireland (n83), per Hardiman J.
142
ibid.
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of the people of Ireland’. The fundamental inconsistency is that whereas the Constitution provides
that: ‘the entire revenues of the Irish State form a single fund (Article 11 of the Constitution) which is
to be expended in the manner provided by Irish law (Article 11 also) and in the interest of the common
good of the people of Ireland (Article 6 of the Constitution)’, the ESM Treaty provides that: ‘monies
paid … will be used for the purpose of providing support to members of the Euro zone in financial
difficulty, where such support is “indispensable” to safeguard the financial stability of the Euro area as
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a whole and of its Member States (Article 3 ESM Treaty)’.
That inconsistency in the ‘point of
reference’ (to use the phrase of Henchy J endorsed by Hardiman J) by which decisions would be
made about how to expend Irish monies, would, in the view of the latter, ‘infringe Ireland’s sovereignty
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and her inalienable right independently to decide her relations with other States’ in four ways.
First, and simply, Irish public money is, by the terms of the ESM Treaty, ‘to be transferred to a new
financial institution, outside both Irish and European Union control, and to be spent by that institution
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on providing funding to other countries which are experiencing severe financial problems’
when
their problems need to be addressed in order to stabilise the Euro, rather than maintained and used
according to the procedures laid out in the Constitution for the purpose of furthering the common good
of the Irish people. Secondly, Ireland would be committing itself to ‘submit to decisions as to the
expenditure of the fund … and itself to exercise its relevant powers “in particular procedures” (as
Walsh J put it)’, which on the authority of the Crotty decision he considers to be ‘impossible in terms
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of the Constitution’, because the Constitution requires ‘a purely national approach’ to ‘questions of
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external relations and, indeed, to public expenditure’. Thirdly, the ESM Treaty is inconsistent with
the constitutional protections ‘for ensuring democratic accountability, to the Irish people, for the
appropriation and expenditure of the monies which compose the Central Fund’, in particular because
of the conflicting roles of the Minister for Finance who, according to the Constitution, makes decisions
under the collective authority of the cabinet for which cabinet is collectively responsible, and which, in
particular is collectively responsible to Dáil Éireann, and who, under the ESM Treaty, would make
decisions as a member of the Board of Governors of the ESM which can take decisions by reference
to the goal of ensuring a stable currency. Fourthly, the €11 billion which Ireland must pay to the ESM
is to be paid out of the Central Fund but when the requirements of Articles 11 and 17 of the
Constitution, in particular, are examined, ‘it is not clear’, according to Hardiman J ‘that the question
whether or not the payments to the ESM are consistent with those provisions has been addressed at
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all’. His conclusion, having examined the provisions of the ESM Treaty against the provisions of the
Constitution is that:
[T]he ESM Treaty involves a transfer of sovereignty to a degree that makes it incompatible
with the Constitution when one applies the principles set out by this Court in Crotty, such that
a referendum amending the Constitution is necessary to permit the State to ratify the ESM
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Treaty on behalf of Ireland.
The approach of Hardiman J to the test of constitutional consistency is, in fact, to use all three of the
methods of constitutional interpretation employed by his colleagues in the majority in Crotty. He uses
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ibid.
ibid. On this basis, he found that ‘the Treaty involves a change to the fundamental values and procedures
enshrined in the Constitution in that: a) a significant sum of money subscribed by Irish taxpayers would be given
“irrevocably and unconditionally” to a body which exists outside the Irish, and the European, legal and
constitutional order; b) that body would be obliged by its constitution to expend these monies, or monies raised
on the basis of them, in the interests of the Eurozone or its Member States, as opposed to devoting them, as the
Irish government would have been obliged to do, to the common good of the Irish people’. Whilst admitting that
the interest in stability in the Eurozone might sometimes ‘overlap’ with the common good of the Irish people, he
pointed out that ‘they may not overlap. It is impossible, looking at these matters before the commencement of the
Stability Mechanism, to say in advance whether these different interests will always, sometimes, or never overlap
in practice’.
145
Pringle v Government of Ireland (n83), per Hardiman J.
146
ibid.
147
ibid.
148
ibid. In contrast, he stated that, by the terms of the ESM Treaty, ‘[w]hat is now proposed is outside the scope
either of a purely national approach or of a European Union approach. It is a tertium quid, a new dispensation of
an entirely different nature, and is not in my view contemplated or mandated by the Constitution’.
149
ibid.
150
ibid.
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Crotty after Pringle: The Revival of the Doctrine of Implied Amendment
Maria Cahill
the literal approach in examining the meaning of Articles 1, 5, and 6 in particular; he examines the
systemic implications of Articles 11, 17 and 28.4 in order to determine the role of the Irish institutions
in the allocation of public monies; and he uses the concept of the common good as the ‘point of
reference’ to shore up a teleological approach to constitutional interpretation against which the effects
of the ESM Treaty can be measured. Hardiman J’s conclusion is therefore that the ESM Treaty
constitutes an amendment of the Irish Constitution. He is not necessarily opposed to such an
amendment (‘Whether the change is worth making or not is a political question on which I abstain
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from comment, but if it is to be made it must in my opinion be made by the people’)
but merely
insists that it is an amendment and therefore must be made according to the requirements of Articles
46 and 47. In fact, none of the majority judges has presented a detailed counter-argument to this
proposition that the ESM Treaty is inconsistent with the provisions of the Irish Constitution, since they
operated on the basis of the test of treaty comparison. If one accepts Hardiman J’s arguments, the
Irish Constitution has been amended implicitly by the ratification of the ESM Treaty and the doctrine of
implied amendment has been used to effect the most important additions and variations of several
constitutional provisions that have taken place since the establishment of the 1937 Constitution.
Conclusion
Even if one rejects Hardiman J’s arguments, the test of treaty comparison is exposed by the Pringle
decision. The majority judges do not agree on which indices are to be used to operationalise the test,
some of the indices are clearly capable of yielding a high number of false negatives, and even in their
application in the context of the ESM Treaty, the application of the indices yielded conflicting and
surprising results. The nine indices from Pringle follow from the two indices identified in McGimpsey
and the ‘essential scope or objectives’ test in Crotty to produce a suite of twelve optional indices for a
judge who wished to apply a test of treaty comparison in future. All the while, such a treaty would not
be examined for consistency with the Constitution, and so no attention would be paid to the question
of whether specific constitutional provisions were being changed by way of addition, variation, or
repeal. In these circumstances, the possible outcomes to judicial disputes range from – at best –
principled acceptance of the doctrine of implied amendment without any actual amendment of the
Constitution to – at worst – significant constitutional amendments made without adherence to the
constitutional amendability procedure such that the doctrine of implied amendment once more results
in ‘scant respect’ being shown for the ‘sacred character’ of the Constitution.
The Constitution requires that amendments should be affected by means of the official constitutional
amendability procedure whenever any change, no matter how small or technical or seemingly
insignificant, is proposed to the Constitution. The doctrine of implied amendment is accepted anytime
the courts allow an amendment to take place in another way, even if it is or seems to be only a minor
change. When it comes to treaty ratification, the courts have, since 1987, been availing of a test of
treaty comparison which examines the need for a popular referendum to ratify an international treaty
by reference to whether it is significantly different from a previous treaty. In principle, therefore, they
accept the doctrine of implied amendment. The Crotty decision espoused the test of treaty
comparison only within the relatively narrow subset of European treaties, by interpreting Article 29.4.3
in a very particular way, and used the index of ‘essential scope or objectives’ to operationalise the test
of treaty comparison. The McGimpsey decision broke that mould by employing a test of treaty
comparison outside of the context of Article 29.4.3 and by identifying two new indices for the
application of the test of treaty comparison. The Pringle case marks a further shift in favour of the test
of treaty comparison for the reason that none of the majority judges supported their conclusions by
recourse to the test of constitutional consistency, and employed a further nine indices in order to
reach their conclusions based on the test of treaty comparison.
The creeping resurgence of the doctrine of implied amendment in the context of treaty ratification is
surprising when read against the disastrous consequences it had on the 1922 Constitution, the vigour
with which the judges since 1937 have retrospectively denounced it, and the considerable
disadvantages that they have outlined that it has for the rule of law. If we agree that the doctrine of
implied amendment has such a damaging effect when ordinary legislation is capable of impliedly
amending the constitution, even though ordinary legislation emanates from the national parliament
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ibid.
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which is directly elected by the people of the State, then surely the revival of the doctrine of implied
amendment in the context of treaty ratification poses an altogether more serious threat?
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