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Varadkar plans referendum

on extending presidential
voting rights
Question will ask if Irish citizens outside the State should
be allowed to vote for president
October 28, 18
Freya McClements

Taoiseach Leo Varadkar during a visit to the association’s Memorial Hall in


Londonderry. Behind is an effigy of ‘Lundy’, regarded as a traitor by loyalists
during the Siege of Derry in 1689. Photograph: Brian Lawless/PA Wire
A referendum will be held next year to ask whether the
right to vote in the presidential election should be
extended to Irish citizens living outside the state, the
Taoiseach has said.
Speaking at a dinner in Derry on Friday, Leo Varadkar
said the next round of referenda was “pencilled in” for
the same time as the European and local elections in
May 2019.
He was speaking before the results of an Irish Times exit
poll which published on Friday, which shows Michael D
Higgins is set to be returned as President with a huge
majority.
Irish Times view on the presidential election: vacuous
contest, predictable end
Casey says he intends to join Fianna Fáil and become
Taoiseach
Sinn Féin’s presidential campaign was a failure
“One of those questions will be to open up the franchise,
when it comes to electing the next President, to Irish
citizens who live outside of the 26 counties. “That’s Irish
citizens who live here in Northern Ireland, Irish citizens
who live around the world.”
The Taoiseach said there had been a movement to
modernise Ireland’s constitution over the past few
decades, and it would create an opportunity “to elect a
president who will represent not just the state but the
whole Irish nation on this island and around the world.”
Acknowledging a reference to the DUP MP Sammy
Wilson by a previous speaker at the dinner, the
Taoiseach said: “Therefore it is not inconceivable
perhaps in seven years’ time that all of you here will have
the opportunity to vote for president Wilson, should he
put his name forward.”
Voting in presidential elections is currently limited to
citizens resident in the Republic of Ireland. If upheld,
the referendum would give Irish citizens living in
Northern Ireland and around the world the right to vote
in the next Presidential election in 2025.
https://www.irishtimes.com/news/politics/varadkar-plans-referendum-on-extending-
presidential-voting-rights-1.3678267?utm_source=dlvr.it&utm_medium=twitter
May referendum could allow
northerners to vote for president of
Ireland

A referendum is to be held in May on whether Irish citizens living


outside the Republic can vote in presidential elections. Picture by
Rui Vieira, Press Association

CLAIRE SIMPSON
26 September, 2018 01:00

A REFERENDUM is to be held in May on whether


Irish citizens living outside the Republic - including
in the north - can vote in presidential elections.
Former Taoiseach Enda Kenny announced the
refere[..

A REFERENDUM in the Republic which could see people in the


north become eligible to vote in presidential elections is to be held in
2019.
The Irish government has agreed a provisional timetable for a series
of referendums over the next two years.
The most prominent is a vote on repealing the eighth amendment of
the Irish constitution, which guarantees the equal right to life for the
mother and the unborn.
It is set to be held next May or June and could pave the way for a
relaxation of strict abortion laws.
A referendum on removing the offence of blasphemy and another on
the constitution's references to "woman's life within the home" are
planned for October 2018, while in 2019 there will be a vote on
reducing to two years the time couples would have to live apart before
getting a divorce.
Proposals to allow Irish people living outside the Republic to vote in
presidential elections and to reduce the voting age to 16 are also
planned for June 2019.
Around 3.5 million Irish citizens, including those in the north, live
outside the state.
A constitutional convention voted in favour of extending voting rights
to all Irish citizens in September 2013.
Sinn Féin senator Niall Ó Donnghaile said his party had long
campaigned for the change.
"An Taoiseach must ensure there is no further delay in bringing that
referendum forward, he must act in the interest of all those who are
Irish citizens and seek to engage with the democratic life of Ireland,"
he said.
"A basic tenet of any democracy is the right of citizens to vote."
http://www.irishnews.com/paywall/tsb/irishnews/irishnews/irishnews//news/republicofirela
ndnews/2018/09/26/news/may-referendum-could-allow-northerners-to-vote-for-president-
of-ireland-1442349/content.html

Taoiseach on Voting Rights in Presidential Elections for


Irish Citizens outside the State

The Taoiseach today announced that the Government has decided to hold a
referendum to amend the Constitution to allow Irish citizens resident outside the
State, including in Northern Ireland, to be allowed to vote in Irish presidential
elections.
The Government's decision is in line with the recommendations of the Convention on
the Constitution, in their Fifth Report.
This announcement is a historic recognition of the strong and enduring links between
Ireland and all our citizens, wherever they are in the world.
Speaking at the Irish Memorial in Philadelphia today, the Taoiseach said: "Today's
announcement is a profound recognition of the importance that Ireland attaches to all
of our citizens, wherever they may be. It is an opportunity for us to make our country
stronger by allowing all of our citizens resident outside the State, including our
emigrants, to vote in future presidential elections.
"I am especially pleased to be making this announcement as we prepare for our
worldwide celebration of St. Patrick's Day and of all that is Irish."
Extending the franchise in presidential elections to Irish citizens resident outside the
State gives rise to a range of legal, policy and practical issues. In order to have an
informed public debate on this, Government will publish a detailed Options Paper
later this month to set out the range of options available to give effect to the
recommendation of the Convention on the Constitution. This paper will also be one
of the topics for discussion at the Global Irish Civic Forum which will take place in
Dublin in May.
The extension of the franchise will require modernisation of the voter registration
process and the introduction of arrangements to facilitate citizens to exercise their
franchise from outside the State. The Government has agreed that important work
will now commence on modernisation of the voter registration process to effect
improvements in the registration of voters.
This announcement is also in keeping with arrangements in place in a majority of
countries around the world who provide for voting by those of their citizens resident
outside the State.
Background
The Convention on the Constitution in its Fifth Report, submitted to the Oireachtas in
November 2013, recommended that the constitution be amended to provide for
citizens resident outside the State, including Northern Ireland, to have the right to
vote at presidential elections.
Today's announcement is also set in the context of Ireland's long history of
emigration and strong relationship with our large global diaspora. As outlined
in Global Irish: Ireland's Diaspora Policy, that unique and important relationship is
nurtured and developed by Government through a broad range of initiatives and
networks.

A key theme that emerged from submissions received during the development of
Ireland's Diaspora Policy was the importance of the issue of voting rights to many
Irish citizens abroad. Many members of the diaspora felt it would allow them to
deepen their engagement with Ireland and to play a more active role in Irish society.

At the time of publication of Global Irish: Ireland's Diaspora Policy in 2015, the
Government asked the Minister for the Environment, Community and Local
Government; the Minister for Foreign Affairs and Trade and the Minister for Diaspora
Affairs to analyse the policy, legal and practical issues arising from Convention on
the Constitution's recommendations on the extension of voting rights to Irish citizens
outside the State, including Northern Ireland, in presidential elections.

That analysis has been completed and has formed the basis of a detailed Options
Paper which will be published this month.
ENDS
https://www.taoiseach.gov.ie/eng/News/Taoiseach's_Press_Releases/Annou
ncement_by_the_Taoiseach_on_Voting_Rights_in_Presidential_Elections_
for_Irish_Citizens_outside_the_State.html
Voting at presidential elections by citizens resident outside the State Options
paper Prepared by the Department of Housing, Planning, Community and
Local Government and the Department of Foreign Affairs and Trade
https://www.housing.gov.ie/sites/default/files/publications/files/voting_at_preside
ntial_elections_by_citizens_resident_outside_the_state_-_options_paper_-
_22_march_2017.pdf
voting behaviour in referendums on European integration has predominantly been a
battle between three competing schools- the “attitude” school, the “second-order
election” school and the “utilitarian expectations”
http://personal.lse.ac.uk/HOBOLT/Publications/JEPOP_eprint.pdf

Focusing on the case of


Britain, this paper evaluates
the role that EU issue voting
played in the 1992 and 1997
elections
http://aei.pitt.edu/33044/1
/de_vries._catharine.pdf
Voting behaviour in the 2009 Irish referendum on the Lisbon Treaty

http://www.ucd.ie/t4cms/11-4%20Elkink%20Quinlan%20Sinnott.pdf

No diaspora vote in 2018


presidential election, says
Coveney
Government approves start of work on improving voter
registration process
Fri, May 26, 2017,
Marie O'Halloran

It will be 2025 at the earliest before overseas citizens will be eligible to vote.
Photograph: Alan Betson
Ireland’s diaspora has no chance of voting in next year’s
presidential election, Minister for Local Government
Simon Coveney has confirmed.
Work is however starting on improving the voter
registration process, he said.
https://www.irishtimes.com/news/politics/oireachtas/no-diaspora-vote-in-2018-
presidential-election-says-coveney-1.3097927?mode=sample&auth-failed=1&pw-
origin=https%3A%2F%2Fwww.irishtimes.com%2Fnews%2Fpolitics%2Foireachtas%2Fn
o-diaspora-vote-in-2018-presidential-election-says-coveney-1.3097927

Voting Rights for Irish Citizens Abroad in Irish Presidential Elections 1. The Government
Decision (S180/20/10/1841) of 7 March 2017 approved, in principle, the holding of a
referendum to amend the Constitution to extend the franchise at presidential elections to
include Irish citizens resident outside the State, including citizens resident in Northern
Ireland

https://dfa.ie/media/dfa/alldfawebsitemedia/newspress/publications/ministersbrief-
june2017/5--Voting-Rights-for-Irish-Citizens-Abroad-in-presidential-elections.pdf
Ó Donnghaile welcomes
announcement of
referendum on
Presidential voting rights
24 September, 2018 - by Niall Ó Donnghaile

Sinn Féin Seanadóir Niall Ó Donnghaile has said extending Presidential voting rights
to citizens in the north and the Irish diaspora is an important step in ensuring equality for
all Irish citizens.

And he said this would make the office of Uachtarán truly representative of the people.

Seanadóir Ó Donnghaile said:

“Giving Irish citizens in the north the opportunity to vote for our President is a practical
expression of the terms of the Good Friday Agreement.

“The Agreement upholds the right of people in the north to Irish citizenship and to provide
equal treatment for the identity, ethos, and aspirations of both communities in this part of
Ireland.

“I therefore welcome the announcement the Irish Government has at long last agreed to
hold a referendum on presidential voting rights.

“Sinn Féin has long been leading this campaign and pressing
consecutive Irish governments for the extension of voting rights since the signing of the
Good Friday Agreement.

“This issue has been a priority for me since entering the Seanad and I look forward to the
campaign for equality that lies ahead.

“Full, participatory and equal citizenship and allowing Irish citizens in the north and
overseas this most basic entitlement, the right to vote in Presidential elections, is a
positive advance for everyone in Irish life.”

http://www.sinnfein.ie/contents/51037

Global Irish- Ireland’s Diaspora Policy


https://www.dfa.ie/media/globalirish/global-irish-irelands-diaspora-policy.pdf
European Parliamentary elections
(Northern Ireland)
https://www.electoralcommission.org.uk/__data/assets/pdf_file/0015/164130/sp-ca-epe-
2014-ni.pdf
UK Cabinet Office October 2016 A democracy that works for everyone - British citizens
overseas
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment
_data/file/558280/overseas_electors_policy_statement.pdf

Voting from Abroad the International Institute for Democracy and Electoral Assistance
(IDEA) concludes that there is no best procedure for external voting, with each country
having to consider what best suits the needs of their own electorate

https://www.idea.int/sites/default/files/publications/voting-from-abroad-the-international-
idea-handbook.pdf

Security Analysis of the Estonian Internet Voting


System
https://jhalderm.com/pub/papers/ivoting-ccs14.pdf

Council of Europe (Venice Commission), Out of Country Voting Legal Provisions, 6


October 2010. This paper contains listing of legal provisions for OCV in member
European states
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-
EL(2010)013rev2-bil
EU Electoral System Design Database Codebook International Institute for Democracy
and Electoral Assistance
https://www.idea.int/sites/default/files/publications/electoral-system-design-database-
codebook.pdf
REFLECTIONS ON REFERENDUMS
https://www.idea.int/sites/default/files/publications/reflections-on-referendums.pdf

Paper of - The Citizens' Assembly Referendum Act 1998, 19 Section 3 as amended by


Referendum Act 2001. 20 Section 2 Referendum Act 1998. 21 Ruane, “Reflections on
procedural rights in constitutional referenda” (2012) Irish Jurist 1 at 27.
https://www.citizensassembly.ie/en/Meetings/Niamh-Hyland-Paper.pdf

referendum proposal, promotes public awareness of a referendum and encourages the


electorate to vote. It is open to the Minister for Housing, Planning and Local

https://www.citizensassembly.ie/en/Meetings/Signpost-Document-Referenda.pdf
Queering Irish Nationalism’
How the Irish Marriage Equality Referendum 2015
marked a reshaping of Irish national identity
https://www.maynoothuniversity.ie/sites/default/files/assets/document/Deirdre%20Campb
ell%20Thesis_0.pdf
The Treaty of Lisbon after the Second Irish Referendum The Treaty of Lisbon after the
Second Irish Referendum . RESEARCH PAPER 09/75 8 October 2009 . In a referendum
on 2 October 2009 the Republic of Ireland voted by 67.1% to 32.9% in
http://www.voltairenet.org/IMG/pdf/Treaty_of_Lisbon_after_the_Second_Irish_Referendu
m.pdf

https://docs.google.com/viewerng/viewer?url=https://vdocuments.mx/google-
reader?url%3D984f603d8ec028140d966624130d4d0b5f58274b4468d02913851d11edca
6bf793fcccbd09aca2208e197203cc05e58a977b8998381d2d55ec348e75f6983931FOcD
5Drn/EhHwKUSMKFrj9BAcHR3plKlV4o41O6G6pyBxyOwtyxM9cyf7Cvwio15KMrYKACy
QoN+jJiHNQbhAxt2KWflFsorFikyXF2H9ec%3D

Data Retention Saga Continues- European Court of Justice and EU Member States
Scrutinize National Data Retention Laws
https://www.jonesday.com/files/Publication/188dada7-78e3-436d-9703-
166bc4798f66/Presentation/PublicationAttachment/e07eb66a-7f2b-4910-8a24-
6099231f2683/Data%20Retention%20Saga%20Continues.pdf

Meeting of European Labour Court Judges IRELAND Non-competition clauses in labour


contracts National reporter- Judge Kevin Duffy Chairperson, The Labour Court Dublin
http://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---
dialogue/documents/meetingdocument/wcms_159965.pdf
A total of 53.4% of Irish voters rejected the Lisbon Treaty, with just 46.6% voting in
its favour. Turnout was not as low as initially predicted, with 53.1% of the electorate
turning up at the urns.

With a total of 862,415 votes against, the Lisbon Treaty, which would have affected
all the EU's 495 million citizens, was effectively rejected by 0.175% of the bloc's
population, throwing the EU into an existential crisis.

A lone referendum

Ireland was the only EU country to require ratification of the Lisbon Treaty through a
nationwide referendum. This is due to a 1987 ruling by its Supreme Court
which stipulates that significant changes to the European Union treaties require an
amendment to the Irish Constitution (which is always done by means of a
referendum) before being ratified by the State.

In all other EU members, national parliaments are dealing with ratification. No major
obstacles are expected, except perhaps in the UK, where although the
parliamentary ratification procedure is advancing, Tory millionaire Stuart Wheeler
has won the right to open a High Court review into whether the UK Government
should hold a referendum on the Treaty following its earlier promise to hold one on
the since-defunct EU Constitution. The legal dispute was heard by the Court on 9-10
June, but judges have reserved ruling until a later date.

An awkward history

Ireland had already rejected an earlier attempt to adapt the European institutions
to their enlarged membership. Its voters rejected the Nice Treaty in a 2001
referendum.

The move sparked an EU-wide crisis which continued until the Treaty was put to a
referendum again 16 months later, when it successfully passed the test.

The paradox of the 'no' vote

Ireland has gained a lot from its EU membership. When Ireland joined the EU in
1973, it was the poorest country in the Community of Nine, as it was then. But the
country soon became a model of success.

In 1987 Irish GDP stood at just 69% of the Community average. Now Ireland is
up there among the leaders, with GDP running at 146% of the EU average, a
figure surpassed only by Luxembourg.

However there are signs that the economic boom is coming to an end. The close
connections of the country with the battered US economy and the pressure being put
on its exports by the strong euro could have had a negative impact on voters.

Furthermore, despite assurances from the Commission that the new Treaty will not
affect countries' tax sovereignty, there were concerns among the business community
that the text would open the door to EU-wide tax harmonisation, threatening Ireland's
low corporate rate (12.5%), which is considered a key factor in the country's
economic success.

Irish voters also feared that their country would gradually become involved in an EU
defence policy, losing its neutrality (EURACTIV 10/06/08), while the concerns of
Irish farmers over the EU's trade policy were overheated by European politicians
ahead of the referendum (EURACTIV 10/06/08).

In the end, it would appear that the Irish also tired of a 'yes' campaign marred by the
resignation of former Prime Minister Bertie Ahern over corruption allegations,
and that a majority of the 'no' votes were directed against the 'eurobabble' proffered by
the 'yes' camp and an almost unreadable text, which even Ahern's successor Brian
Cowen admitted he had not read.

The EU thrown into confusion

The Irish 'no' vote on the Lisbon Treaty has again thrown the Union into a state of
confusion, with leaders voicing contradictory and sometimes strange ideas. The most
visible contradiction is between those who consider the treaty to be dead (with Czech
leaders the most vocal in this respect) (EURACTIV 16/06/08) and mainstream
politicians, who would prefer ratification to continue in the remaining eight countries
as planned in the hope that a solution will be also found for Ireland.
With the Slovenian Presidency drawing to a close, it will now be mainly in the hands
of the incoming French Presidency to lead the search for a way out. Ironically, it was
France that threw the EU into a similar state of chaos when its own citizens rejected
the now-defunct Constitution in 2005.

The intention of the French appears to be to ensure that ratification continues. In the
meantime, a re-run of the referendum could take place, as happened after the Irish
first rejected the EU's Nice Treaty in 2001.

Other, more original solutions could emerge, like introducing new opt-outs to keep
the Irish electorate happy, or changing key provisions of the Treaty, like the number
of commissioners. Irish voters had expressed concern over the possible loss of their
commissioner if the EU executive body were to be slimmed down according to the
Lisbon Treaty. Keeping the 'one commissioner per country' principle was aired as a
possible compromise solution.

Excluding Ireland?

One of the most radical ideas being expressed is that Ireland should leave the EU. The
Romanian opposition Social Democrats proposed that Ireland should hold a second
referendum on the Lisbon Treaty, except that this time the 'no' vote would be tied to
the country's exclusion from the Union. A little less radical is the idea of setting up "a
specific type of co-operation" with Ireland, which would allow the rest of Europe to
move on.

Just like the UK, Denmark and Sweden, Ireland has already negotiated opt-outs in
certain sensitive policy areas, including from the Schengen agreement on passport-
free travel. And, with regard to the Lisbon Treaty, it had already negotiated a future
opt-out from any decisions in the sector of Police and Judicial Cooperation in
Criminal Matters taken by qualified majority voting rather than unanimity.

But if Ireland were left in the freezer while Europe advanced, it could also be the
makings of an "à la carte" Europe.

Towards a weaker EU

If the EU fails to find a quick way out of the crisis, it is likely to be weakened
internationally, notably in its dealings with powers such as Russia and Iran. Indeed, a
key aim of the new Treaty was to lend more credibility to the EU as a political
heavyweight in the international arena.

The Lisbon Treaty foresees the establishment of a permanent EU Council President


and an External Action Service as well as a strengthening of the role of the EU's High
Representative for Foreign and Security Policy.

All this is now brought into question following the Irish 'no' vote, which also has
implications for the enlargement process of the EU. Indeed, the Treaty also sought to
address the bloc's capacity to integrate new members.

Nevertheless, Europe will not suddenly collapse, since it has been governed
successfully by the Nice Treaty even since the enlargement to 27 members.
What is really at stake is whether the European political class will understand the
citizens' message or make the situation even more difficult ahead of European
elections in mid-2009.

Timeline of past Irish EU referenda

Despite numerous debates as to whether or not each and every successive EU treaty
has been sufficiently far-reaching to justify a constitutional amendment, Ireland has
already conducted six referenda related to its EU membership.

One of these took place before the state joined the European Communities, as the so-
called "Third Amendment" was necessary for its accession (1972 referendum). Then
came the Single European Act (1987), the Maastricht Treaty (1992), the Amsterdam
Treaty (1998), the first Nice Treaty referendum (2001) and the second one (2002).

Against
Date Subject Electorate Total poll For (%)
(%)

10 May European 903,439 724,836 131,430


1,783,604
1972 Communities (50.7%) (84.6%) (15.6%)

26 May Single European 1,085,304 755,423 324,977


2,461,790
1987 Act (44.1%) (69.9%) (30.1%)

18 June 1,457,219 1,001,076 448,655


Maastricht Treaty 2,542,840
1992 (57.3%) (69.1%) (30.9%)

22 May Amsterdam 1,543,930 932,632 578,070


2,747,088
1998 Treaty (56.2%) (61.7%) (38.3%)

997,836 453,461 528,478


7 June 2001 Nice Treaty 2,867,960
(34.8%) (46.1%) (50.4%)

19 October 1,446,588 906,317 534,887


Nice Treaty 2,923,918
2002 (49.5%) (62.9%) (37.1%)

12 June 1,621,037 725,451 862,415


Lisbon Treaty 3,051,324
2008 (53.13%) (46.6%) (53.4%)

https://www.euractiv.com/section/eu-priorities-2020/linksdossier/the-irish-eu-treaty-
referendum/
Lisbon Treaty guarantees for Ireland 19 June 2009 Professor Steve Peers University of
Essex
http://www.statewatch.org/news/2009/jun/lisbon-ireland.pdf
The Lisbon Treaty: ratification issues in Ireland, Germany ...
researchbriefings.files.parliament.uk/.../SN05147.pdf
The Irish Government was asked to report to the European Council in mid-October 2008 on
its plans with regard to the Lisbon Treaty, which was rejected in a referendum on 12 June
2008 by 53.4% to 46.6%.

The Irish government says it is following the precedent set down by the
Danish governmentfollowing the rejection of the Maastricht treaty in a referendum there in
1992. (No 50.7%, Yes 49.3%

Lisbon guarantees
Updated / Tuesday, 8 Sep 2009
Lisbon - Guarantees for Ireland
RTÉ Europe Editor Sean Whelan analyses
the legal status of the guarantees given to
the Government on the Lisbon Treaty
 

Just how legally binding are the guarantees that the
Government got at the EU summit?
The agreement in Brussels gives Ireland legally
binding guarantees on taxation, military neutrality and
social and family affairs.
How do we know they will be legally binding?
Because of the form of the agreement to be made.
The guarantees come in the form of an international
agreement, made under public international law by
sovereign states, and registered at the United
Nations.
The draft that leaked states the agreement is 'An
agreement between the heads of state or
government of the 27 member states of the European
Union'.
In other words, it is in the form of an international
agreement or treaty, governed by the terms of the
1969 Vienna Convention on International
Agreements.
The Vienna Convention is the 'treaty of treaties'. It is
a UN treaty that sets the rules for legally binding
agreements between sovereign states.
Its most widely cited article is article 26 – which starts
'Pacta sunt servanda' (Agreements must be kept –
arguably the oldest principle in international law).
'Every treaty in force is binding upon the parties to it
and must be performed by them in good faith.'
The agreement on the Irish guarantees will in effect
be a treaty in its own right. It would come into force
on the same day as the Lisbon treaty (if it is ratified).
Both would then be registered at the UN under the
terms of the Vienna Convention. So the guarantees
would be binding in international law, not just EU law
or Irish law.
What about the protocols?
A protocol is an addition to a treaty or an international
agreement.
The Government wants to have the legal guarantees
copper fastened by incorporating them into the EU
treaties as protocols.
This is seen by others as a belt and braces approach
– in other words, not strictly necessary, as the
international agreement registered at the UN will give
the necessary legal guarantees on its own.

Opponents of the Lisbon Treaty such as the Peace


and Neutrality Alliance claim that unless the
guarantees are protocols they will be worthless.
But in order to attach a protocol to a treaty it must be
ratified by all the member states.
So if the Irish want a protocol, they either send it out
to be ratified by all the member states – which will
delay the treaty coming into force, and hold up the
appointment of a new Commission.
Or they wait for another treaty to come along, and
attach it to that. The most likely is an accession
treaty, which makes technical changes to the EU
treaties when another country joins the Union.
Croatia and Iceland are the leading contenders to join
soon.
Because the guarantees are being done as an
international agreement they will have immediate
effect, whereas adding a protocol will take time,
possibly a number of years.
What did the Danes do?
The Irish government says it is following the
precedent set down by the Danish government
following the rejection of the Maastricht treaty in a
referendum there in 1992. (No 50.7%, Yes 49.3%,
Turnout 83.1%)
It was the Danes who came up with the idea of using
an international agreement at the Edinburgh summit
in 1992 to clarify the terms on which the Maastricht
treaty would apply to the Danes.
The terms of this agreement were later written into
the EU treaties as a protocol to the Amsterdam treaty
in 1997.
But only because the terms of the treaties had been
changed by the Amsterdam Treaty, which
necessitated a specific Danish protocol being added.

The Danish Permanent Representative


(Ambassador) to the EU, Poul Christoffersen was
heavily involved in preparing the Edinburgh
Agreement.
In an interview with RTÉ News, he explained the
steps Denmark went through with its legally binding
guarantees. But he also expressed surprise that the
Irish were seeking to have their guarantees written in
as a protocol, saying such a move was not legally
necessary.
Watch the interview
Denmark's second referendum on the Maastricht
Treaty was held entirely on the basis of the
Edinburgh agreement.
In the referendum the treaty was approved by 56.7%
Yes to 43.3% No - with a turnout of 85%.
It seems the Irish government feels it is politically
necessary to get the guarantees attached to the EU
treaties as protocols at some later date.
That could present some political problems for other
countries, notably Britain, Holland and Poland.
Sorting that issue out is likely to be the most time
consuming part of the Irish question at the summit.
Sean Whelan

https://www.rte.ie/news/special-
reports/2009/0617/118547-eulisbon/

Irish people to the EU bureaucracy, for it


appears that the Irish people (and their
government) would be giving up their right to
any future approval of EU laws that would
conflict with the Irish constitution.
ECLJ_Lisbon_Treaty_analysis_final

https://7676076fde29cb34e26d-
759f611b127203e9f2a0021aa1b7da05.ssl.cf2
.rackcdn.com/eclj/080609_ECLJ_Lisbon_Tre
aty_analysis_final.pdf
Swimming in a Sea of Law: Reflections on
Water Borders, Irish (British) Euro Relations and
Opting-Out and Opting-In after the Treaty of
Lisbon Page 2
http://openaccess.city.ac.uk/12646/1/document
.pdf

EU AGREEMENTS WITH THIRD


COUNTRIES- CONSTITUTIONAL
https://www.utwente.nl/en/bms/pa/research/w
essel/wessel49.pdf
Ratification Process in EU Member States -
#TTIP
http://ttip2016.eu/files/content/docs/Full%20d
ocuments/Eschbach_Ratification-TTIP-
CETA-in-EU-MS.pdf
Real Property Law and Procedure ... Ireland and Scotland 41 2.7. Priority and rank of rights
(questionnaire 2.6.) 42 ... European mortgage or European standards
https://www.eui.eu/Documents/DepartmentsC
entres/Law/ResearchTeaching/ResearchThe
mes/EuropeanPrivateLaw/RealPropertyProje
ct/GeneralReport.pdf
Free Trade Agreement of 1972 and the ...
Federal Constitution was not a rejection of
the bilat- ... Ireland and Great Britain join the
European Communities
https://www.eda.admin.ch/dam/eda/en/docum
ents/publications/EuropaeischeAngelegenhei
ten/Schweiz-und-EU_en.pdf
Lisbon
constitution_side_by_side_open_europeThe
Lisbon Treaty and the European Constitution
ECLN
http://www.ecln.net/documents/lisbon/lisbon_
-
_constitution_side_by_side_open_europe.pdf
Draft Withdrawal Agreement - parliament.uk
https://www.parliament.uk/documents/lords-committees/eu-select/Correspondence-2017-
19/20-03-18-draft-withdrawal-agreement-letter-to-Rt-Hon-David-Davis.pdf

Referendums and Deliberative Democracy and Wales, the two Irish referendums on the
Nice treaty, the referendums in Denmark and Sweden on the adoption of the Euro, and
the recent (2005) referendums in Spain,
http://paperroom.ipsa.org/papers/paper_5268.pdf

Council of the European Union Brussels, 25 June 2018 (OR. en ... the european
parliament and the council of the european union, Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 114

http://data.consilium.europa.eu/doc/document/ST-10323-2018-INIT/en/pdf

Well done to the 18,000 of you that voted for Gemma O'Doherty.

The "End Corruption Now" campaign moves up a gear over the coming weeks.

That's 18,000 spoiled votes that could have been used to get Higgins out
We have just voted "corruption" in again for another 7 years on taxpayers money

Joke of a presidential competition... joke of a president, siding with the joke of a government by
signing bills on water and eviction without a second thought. So much for the socialist that was
Michael D of old. It is clear that the establishment parties saw Gemma O'Doherty as a major threat and
went out of their way - more so than usual - to subvert democracy. A presidential competition should
be open to any and all citizens who are of good character. A presidential competition should not be
controlled and subverted by vested interests ala FG and FF. I note that the propaganda machine is
saying that Mickey D has achieved a higher % than any other president... funny that, the turn out was
considerably lower than any election in recent years, so their % argument is bull.





Too heavy a burden
It didn't take long before Labour lackeys would use MDH's re-election, an apolitical post,
for their own political gain...
How low can you go? Ask Aodhán.
He's positively subterranean at this stage.
Wee Mickey D's a joke for a socialist no different from his Labour counterparts.
Their desperation is truly palpable now. Labour died the day their champagne socialist
"leaders" sold out.
A yes the value off Labour policies is how to lie and say there on the people's side and when they get
there ass in Gov go back on everything they promised who can forget The then Leader off the Labour
party opening food banks and having a good laugh doing it and as minister for SW telling mothers off
7 years children there kids were now old enough to look after themselves and they would now have to
go and get a job and all the other cuts she and Labour done to people on SW this the values Labour
have

Focus Ireland has revealed that it advised homeless families on around 180 occasions so far this year to
consider spending the night at a garda station.
The figure emerged as the group wrote to members of Dublin City Council, expressing its frustration at
the “policy vacuum” over the issue.

Regarding the 180 figure, Focus Ireland director of advocacy Mike Allen said many of those instances occured in
the first three months of this year and added: “We then follow up and connect with those families in the morning.”
In the letter to Dublin City Council, Mr Allen wrote that Focus Ireland had verified around 20 cases in which
families admitted to staying in garda stations this year.
He said Focus Ireland had adopted the advice policy in the absence of any guidance from the local or national
authorities as to what should happen in such extreme circumstances.

READ MORE:
Fears over conflict of interest in schools inspections
“Despite the intervening years, and the periodic moral outrage expressed on the issue, there is still no such
guidance from either the relevant national bodies or, indeed, yourselves,” he wrote. “Since 2015, we have asked
DCC, the DRHE, Department of Housing, and the Department of Children and Youth Affairs to produce formal
guidelines about what action and reporting should occur in these extreme circumstances.
“However, no guidelines or reporting mechanisms has been produced by any of the various statutory authorities
who are involved."
The letter asks for the support of councillors in establishing a process “which sets out what should happen if there
is ever a circumstance when a family cannot be accommodated at night.”

SDLP call for all Irish citizens to


be given vote in presidential
election
SDLP deputy leader Nichola Mallon is supporting the campaign.
By Gareth Cross
October 24 2018
In a series of posts on social media with the hashtags
#OurVoteOurPresident and #Aras18 members posted
photos with their Irish passports and called for equal
voting rights.
People in Northern Ireland cannot currently vote in the
Irish presidential election.
SDLP leader Colum Eastwood said that every Irish voice
should have a say in the election of the President.
“The voice of An Uachtaran speaks for far more than the
state, it is the voice of the Irish people," the Foyle MLA
said.
"It is fitting that Irish voices from across the world,
whether they’re in Boston or Belfast, Dublin or Dubai,
should have an equal stake in who holds that office."
View image on Twitter
SDLP
@SDLPlive

"Irish Citizens shouldn't be disenfranchised once they step


outside of the borders of the Republic."- SDLP MLA for
Newry and Armagh @JustinMcNu1ty
#OurVoteOurPresident #Aras18
1:17 PM - Oct 24, 2018

23

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SDLP Youth
@SDLPyouth

We support #OurVoteOurPresident ! We call for the


extension of voting rights in the Presidential election to
Irish citizens in the North.
12:40 PM - Oct 24, 2018


 ee SDLP Youth's other Tweets
S
Twitter Ads info and privacy
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SDLP
@SDLPlive
‘’As Irish citizens, we all should have the right to vote for
our President. Let’s work on change before the next
election in 2025.’’ - @Paul_Doherty__ SDLP West
Belfast#OurVoteOurPresident #Aras18
12:03 PM - Oct 24, 2018

19

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SDLP
@SDLPlive
"We believe that as Irish Citizens we should be afforded
the right to vote for our President." - SDLP Deputy Leader
@NicholaMallon #OurVoteOurPresident #Aras18
8:13 AM - Oct 24, 2018

78

27 people are talking about this
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SDLP
@SDLPlive

"Irish voting rights for Irish Citizens". - Cllr


@roisinlynchsdlp, Antrim #OurVoteOurPresident #Aras18
10:40 AM - Oct 24, 2018

12

 ee SDLP's other Tweets
S
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SDLP
@SDLPlive
"When Mary Robinson put a candle in the window of the
Áras it was a symbol to all Irish Citizens across the globe
that the President represented them. We should have a
voice in electing that person."- @SeamasBelfast South
Belfast SDLP

#OurVoteOurPresident #Aras18
10:21 AM - Oct 24, 2018

21

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SDLP
@SDLPlive
"I hope in 2025, all Irish Citizens will have the right to vote
for their president."- @chrisandyson Chairperson of the
SDLP Belfast Youth Exec#OurVoteOurPresident #Aras18
9:10 AM - Oct 24, 2018

30

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SDLP MLA for Mid Ulster, Patsy McGlone said that
unionists should not feel threatened by the campaign for
voting rights.
“This is not an attempt to undermine the right of unionists
on this island to identify themselves as British. It is simply
about providing citizens in the North of Ireland with the
democratic right to vote for the President of Ireland
alongside citizens in the rest of the country," he said.
Irish citizens living outside the Republic of Ireland cannot
currently vote in Presidential elections. They lose their
right to vote after living outside the country for 18 months.
Anyone wishing to vote who lives overseas must travel
back to their home constituency to cast their ballot in
person.
A referendum on extending voting rights in Irish
presidential elections to Irish citizens living overseas is
planned for May 24 2019.
Work is still progressing on the bill and it has not been
decided if the referendum will apply to all Irish citizens
living abroad or limit it to those who hold an Irish
passport.
On Friday incumbent Michael D. Higgins will battle
independents Peter Casey, Gavin Duffy, Joan Freeman,
Sean Gallagher and Sinn Fein's Liadh Ni Riada to be
named the next President of Ireland.
https://www.belfasttelegraph.co.uk/news/northern-ireland/sdlp-call-for-all-
irish-citizens-to-be-given-vote-in-presidential-election-37453599.html
Irish Constitutional Convention (ICC) was established on the heels of the worst economic
crisis in the history of Ireland as an independent state. The Fine Gael-Labour coalition
government that was elected in the 2011
http://eprints.lse.ac.uk/63414/1/democraticaudit.com-
The%20Irish%20Constitutional%20Convention%20offers%20a%20potential%
20route-map%20for%20renewing%20UK%20democracy.pdf
Plebiscite on the Draft Constitution 1937 An ordinary referendum may take
place when the President, on receipt of a joint petition from a majority of the
members of the Seanad and not less than one third of the members of the Dáil
https://www.housing.gov.ie/sites/default/files/migrated-
files/en/Publications/LocalGovernment/Voting/referendum_results_1937-
2015.pdf
Referendum-on-Blasphemy-Guide Referendum Commission The Referendum
Commission is an independent body set up under the Referendum Act 1998. Its
role is to provide neutral and accurate information to the public in
https://www.refcom.ie/current-referendums/referendum-on-
blasphemy/overview/Referendum-on-Blasphemy-Guide.pdf
presidential elections, the Court has taken the view that the powers of the Head of State
cannot as such be construed as a form of ^legislature _ within the meaning of Article 3 of
Protocol No. 1.
Guide on Article 3 of Protocol No. 1 to the European Convention on Human
Rights Right to free elections Updated on 31 August 2018
https://www.echr.coe.int/Documents/Guide_Art_3_Protocol_1_ENG.pdf

Give all Irish Citizens the Right to Vote


1969 – Northern Ireland Civil Rights Association launches “One Man, One Vote” campaign
which becomes one of the sparks touching off “The Troubles.” 1972 – the Fourth
Amendment of the Constitution reduces the voting age to 18.


https://globalirishvoters.files.wordpress.com/2017/05/give-all-irish-citizens-
the-right-to-vote2.pdf
Electoral (Extension of Voting Rights to Non-Irish Citizens ... 2 Mar 2017 - As
Initiated - Electoral (Extension of Voting Rights to Non-Irish Citizens) Bill 2017 -
This list of debates may not be complete. You can also search directly for this Bill
within the Debates section.
https://data.oireachtas.ie/ie/oireachtas/bill/2017/30/eng/initiated/b3017d.pd
f
Bill entitled an Act to extend voting rights in elections to Dáil Éireann and to the European
Parliament to all adults ordinarily resident in the State
Last updated: 1 Mar 2017
Sponsored by: Paul Murphy; Mick Barry; Ruth Coppinger
Source: Private Member
Originating House: Dáil Éireann
History of this Bill
https://www.oireachtas.ie/en/bills/bill/2017/30/


A Republic for all
Email Facebook Google+ Twitter
As we approach the 100th anniversary of the Rising, support for republican ideals is
growing. People are hungry for real change. The Easter Rising is the defining event and
the Proclamation of the Republic is the defining document in the history of Irish
Republicanism. Our task is to apply it’s principles to the Ireland of today and to achieve
the united Ireland of Equals promised in the Proclamation.

Sinn Féin is seeking a new, agreed and united Ireland. We want to build a just, fair and equal
Ireland, an economically prosperous and socially and culturally inclusive Ireland. We
want to protect our most vulnerable, the elderly, children, the ill, the ethnic minorities,
those with disabilities – and ensure that equality is the touchstone upon which all policies
are formulated.

The republican vision of a united Ireland is based on the principles of equality, inclusion
and sovereignty. There can be no place for sectarianism, exclusion or discrimination.


Sinn Féin Would:

• Continue to campaign for an island-wide referendum on Irish unity - allow the


people to have their say.
• Build upon the work of the all-Ireland Ministerial Council.
• Campaign for Northern representation in the Dáil – northern MPs should be
automatically accorded membership of the Dáil with consultative and speaking rights.
• Extend voting rights for Presidential elections to people in the North and the Irish
Diaspora.
• Develop the all-Ireland economy, including having a planned approach to
economic development across the island of Ireland, one tax system and currency,
integrating infrastructural development and creating a Border Economic
Development Zone to harmonise trade and maximise returns for border
businesses.
• Campaign for a Bill of Rights for all Citizens and an all-Ireland charter of
fundamental rights.
• Promote the Irish language and culture.
• Equality proof legislation before it is produced.
• Continue to advance a process of reconciliation.

http://www.sinnfein.ie/a-republic-for-all-policy

The Irish Churches and the European Referendum- A Discussion


Paper
THE IRISH CHURCHES AND THE EU REFERENDUM- A
DISCUSSION PAPER — ICC European Affairs Committee This
paper has been drafted by the Europe-an Affairs Committee of the
Irish Council
https://www.irishchurches.org/cmsfiles/resources/Euro-Affairs-
Doc-Email.pdf
To be in, or to be out: reflections
on the Danish referendum. EPIN
Commentary No. 29, 10
December 2015
http://aei.pitt.edu/70142/1/Danish_Referendum_0.pdf
REFLECTIONS RÉFLEXIONS SINCE 1977 Anniversary ... Irish Presidency of the Council of
the EU on 8 May 2013 ... 19 REFLECTIONS ON 35 YEARS OF THE ECA
https://www.eca.europa.eu/Lists/ECADocuments/REFLECTIONS_35TH_ANNIV
ERSARY/Reflections_35anniversary.pdf
Citizenship Referendum- Interpretative Declaration by the Irish and British
Governments regarding the British Irish Agreement 20 April 2004 Both
Governments have discussed the proposed amendment to Article 9 of the
Constitution
http://eudo-
citizenship.eu/NationalDB/docs/IRE%20Citizenship%20Referendum%20Interp
retation.pdf
Attitudes and Behaviour in the Second Referendum on the ... 1 Introduction
Twice within the last decade, Irish government proposals to ratify new EU
treaties have been defeated by referendum (the referendum on the Treaty of
Nice in 2001
https://www.ucd.ie/t4cms/Attitudes%20and%20Behaviour%20in%20the%20
Second%20Referendum%20on%20the%20Treaty%20of%20Lisbon.pdf
Ratification of the Lisbon Treaty Ireland is not the only problem Piotr Maciej
Kaczyński, Sebastian Kurpas & Peadar ó Broin
http://aei.pitt.edu/11475/1/1716.pdf

Evaluation of the Irish Referendum on Lisbon Treaty, June 2008

https://www.democracy-
international.org/sites/default/files/PDF/Publications/2008-09-
04_irelandlisbontreaty.pdf

Forcing a referendum’
on the next EU treaty
via Article 27
Michael Gallagher / February 1, 2012
By Michael Gallagher
‘Independent TDs devise plan to force referendum’ reads the headline on the Irish Times site on 1
February. The cunning plan, it turns out, is that they would aim to use the provisions of Article 27 of
the constitution to bring about a referendum on the recently-agreed EU treaty (or quasi-EU treaty) if
the government decides that it does not have constitutional implications and hence need not be put to a
referendum. Article 27 makes provision for a certain number of members of the Houses of the
Oireachtas to petition the President not to sign a bill ‘on the ground that the Bill contains a proposal of
such national importance that the will of the people thereon ought to be ascertained’ (27.1).
(Clarification 3 October 2013, in the context of the abolition of Article 27 being an aspect of the
Seanad abolition debate: The previous paragraph was originally worded without sufficient care. It is
worth emphasising that the President does NOT have the power to put a bill to a referendum, despite
the apparently widespread belief that he or she does. The power that he or she has is the power not to
sign a bill, if petitioned by the specified number of parliamentarians, unless such a bill has either been
put to the people within eighteen months and not vetoed by them, as explained below, or has been
passed by the Oireachtas again within eighteen months and following a general election. Even the
Referendum Commission’s Guide to the Seanad referendum (p. 6) implies that the president does have
the power to put bills to a referendum – ‘This possibility of the reference of Bills to the people by the
President will be removed from the Constitution’ – but given that that the first paragraph of this post
originally gave the same impression I am in no position to cast aspersions.)
Article 27 may not fulfil the hopes that some people may be vesting in it, though. For one thing, to get
such a petition off the ground is no trivial task. It must be endorsed by at least a third of TDs and a
majority of Senators. In the Dáil, when the government took office it had 113 of the 166 TDs, leaving
only 53 (32 per cent) in opposition. Even though a few erstwhile government TDs have jumped ship
since then, it would still require pretty much every non-government TD to support such a petition if the
figure of a third (ie 56 TDs) is to be reached).

In the Seanad, the government had 30 of the 60 seats when the 24th Seanad met (John Coakley’s
chapter on ‘The final Seanad election?’ in How Ireland Voted 2011, p. 258). The two opposition
parties, FF and SF, had only 17 senators between them, with the other 13 being independents. So
securing a majority of support in the Seanad would require the backing of all non-government senators
plus some government defection(s).

Even if these hurdles were met, the battle would be far from over. The President would be obliged to
consult the Council of State before making a decision but that decision would be his alone. In favour of
calling a referendum would be the point that it could hardly be disputed that this international
agreement is a matter of ‘national importance’. On the other hand, given that no referendum has ever
taken place in the history of the state except on the matter of changing the constitution, it would be a
dramatic break with past practice and convention if the President were to bring about a referendum that
is not constitutionally prescribed. Notwithstanding this, it might be argued that just because Article 27
has never been used this does not mean that the Article has somehow ‘lapsed’ through desuetude – the
Icelandic president also has powers that were thought to have become dead letters through non-use
only to prove very much alive when presidents made two referrals of bills to the electorate in recent
years.

The real sting in the tail of Article 27, though, comes in 27.5.1.i, which talks about the bill being
approved by the people ‘in accordance with the provisions of section 2 of Article 47’. Those who flip
through the pages of the constitution to consult this article discover that an Article 27 referendum is not
decided, as constitutional referendums are, by a simple majority of votes cast. Instead, the bill that is
being put to the people is deemed to have been approved by them unless (a) a majority of votes is cast
against it and (b) the number of votes cast against it amounts to at least a third of the total electorate
(47.2.1). The reason for the second condition, Éamon de Valera explained in 1937, was to prevent
intense minorities being able to veto bills that had the tacit consent of the majority.

This second requirement is onerous. If, say, the votes ran 60–40 against the treaty, a turnout of 55.6 per
cent would needed for this to constitute a veto. If the No vote was 54% (it was 53.9% in the first Nice
referendum, and 53.4% in the first Lisbon referendum) then turnout would need to reach 61.7%; since
1972, only once (divorce in 1995) has turnout reached that level in a stand-alone referendum, ie one
not taking place simultaneously with a general election. The No vote in the referendum on extending
the powers of Oireachtas committees in November 2011 amounted to just 29.1 per cent of the
electorate, so had that been an Article 27 referendum the people would be deemed to have approved the
proposal. In the history of the state, No majorities comprising at least a third of the electorate have been
few and far between. The two electoral system referendums way back in October 1968, the first
divorce referendum in 1986, and the referendum on restricting the availability of abortion in November
1992 (same day as a general election) are the only four where the No vote has amounted to a third of
the electorate or more.

And, as a final blow to those who hope that Article 27 might be a route to prevent the government of
the day signing up to this treaty, Article 27.5.1.ii states that even if the people do veto the bill in the
manner required by Article 47, the bill can be passed if Dáil Éireann passes a resolution to that effect,
within 18 months of the President’s referral of the bill to the people, following a general election. So, if
this bill were seen by the government as central to its programme, then even if it were vetoed by the
people the Taoiseach could dissolve the Dáil and, following a general election at which, the polls
currently suggest, the current government would probably be re-elected (see Adrian Kavanagh post 29
January 2012), simply reintroduce and pass the bill.

Nothing is impossible these days, but it seems unlikely that Article 27 will prove to be a route by which
the government is prevented from signing the treaty.

https://politicalreform.ie/2012/02/01/forcing-a-referendum-on-the-next-eu-
treaty-via-article-27/
THE EUROPEAN STABILITY MECHANISM AND THE CASE FOR AN IRISH .
http://www.people.ie/eu/esmref2.pdf

Judicial Independence and the Irish


Referendum on Judicial Pay
Posted on September 19, 2011 by Patrick O'Brien
[This post originally appeared on the UK Constitutional Law Group Blog]

If all goes to plan, this week the wording of a new amendment to the Irish
Constitution will be finalised. The amendment is designed to permit reductions to the
pay of judges and will be voted on in a referendum on 27th October. The reason for
the amendment is well known: the Irish government has no money. In the midst of a
general financial crisis, the pay of other state employees has been significantly
reduced through levies. Thus far judges have been exempt because of Article 35.5 of
the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be
reduced during his continuance in office.’ The exemption of judges from a general
pay cut was never going to be politically palatable and so a halfway house solution
was arrived at two years ago. A scheme was set up whereby judges could voluntarily
forego a portion of their salary in line with the cuts to salaries of other public servants.
Uptake of this scheme was, not surprisingly, quite slow although by January of this
year a significant majority (125 out of 147
judges http://www.rte.ie/news/2011/0106/judges.html) had signed up to the scheme.
When it came into office earlier this year, the new government promised to proceed
with a referendum to facilitate formal reductions to judges’ pay. This pledge was
popular and the amendment is virtually certain to be approved in the referendum.
The core of the new provision (assuming no further amendments) will be Article
35.5.3:
“Where, before or after the enactment into law of this section, reductions have
been or are made by law to the remuneration of persons belonging to classes of
persons whose remuneration is paid out of public money and such law states that
those reductions are in the public interest, provision may also be made by law to
make reductions to the remuneration of judges.”
If passed, the government proposes to reduce the salary of senior judges by 31%. The
judiciary are, by all accounts, unhappy about this proposal and let this be known by a
memorandum released in July (much to the annoyance of the Minister for Justice,
who insisted that it be removed from the Court Service website – an interesting
incident for what it suggests about relations between politicians and judges). The
judges’ document, available
here: http://www.irishtimes.com/focus/2011/judicialpay/index.pdf, was at pains to
point out that the judges did not oppose a pay cut as such, but pointed (amongst other
things) to the threat to judicial independence created by the possibility of a reduction
to judicial pay.
From the way the new Article 35.5.3 is constructed we can surmise that the drafters
are trying to manage a difficult juggling act. They want on the one hand to achieve a
legitimate mechanism by which reductions in judicial remuneration may be achieved.
On the other hand, they want to avoid the challenge to judicial independence that
arises if judges’ remuneration can be used as a means of influencing their decision-
making. This is a sensible way to approach the problem. If judicial independence is
about anything at its core, it is about protecting judges from the kind of very personal
worries – around personal pay and conditions, threats to the person and to family, etc
– that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a
reduction in public sector pay more generally done ‘in the public interest’.
Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that
this is what it actually does. The phrase ‘persons belonging to classes of persons
whose remuneration is paid out of public money’ seems unnecessarily vague and
obtuse. It could mean almost anything. The putative ‘public interest’ test is also too
vague. One would hope that most actions taken by the state should be done in the
public interest, but the ‘public interest’ concerns that apply to reducing the pay of a
civil servant, for example, are not likely to be the same kind of public interest
concerns that apply to a judge. Yet as the wording stands it seems that it is the former
standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a


purposive interpretation to the meaning of Article 35.5, concluding that a
requirement that judges pay income tax was not an attack on judicial
independence. It might have been something of a stretch for a court that has
become more literalist in recent decades, but it could reasonably be argued that a
general reduction in the pay of everyone (not just judges) in emergency conditions
is not a reduction to the pay of a judge for the purposes of Article 35.5.
2. A ‘One-Shot’ amendment. The amendment could simply provide for a
once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
3. Just Word it Better. Why not simply state that judges are not exempt from
general pay cuts affecting all public servants but nor may they be specially
selected for pay cuts, either individidually or as a group? Why not create an
independent means for determining what judicial pay should be?
As it stands, the amendment is a classic example of hard cases making bad law. The
new Article 35.5 closely addresses a very specific situation but has uncertain
application outside of it. It is a shame that a threat to judicial independence in Ireland,
even a minor one, should be created just because of bad drafting.

https://constitution-unit.com/2011/09/19/judicial-independence-and-the-
irish-referendum-on-judicial-pay/


Report of the Independent Commission on Referendums
Referendum 2011: Oireachtas Inquiries
On 8 October, an Irish Times poll found that 65% would pass
the referendum, 8% would not and 27% abstained. Just over two weeks
later on 25 October, shortly after the publication of the letter, a similar poll
saw support declining, with 53%, against favour 46% Overall result:
Yes: 46.7%
No: 53.3 %
and 23% undecided.
http://irishpoliticalmaps.blogspot.com/2011/10/referendum-2011-oireachtas-inquiries.html

This House would hold a referendum on any new EU treaty


The European Union (EU) is the economic and political partnership of 27 member states, primarily

based in Europe. Based on precedence set from treaties signed in the wake of the Second World War,

the European Union established itself under its current title in 1993. Since this time it has grown in size

and undergone several constitutional changes, most notably the Treaty of Lisbon, which came into

force in 2009. Up until now the process through which proposed amendments are accepted has not

been uniform. For example a draft Constitution drawn up in amended form at a European Summit in

June 2004 caused a divide when some countries ratified the treaty through national parliaments while

others opted for a referendum within their country. As a result the Treaty was rejected by popular vote

in France and the Netherlands, and abandoned. In October 2007 the idea was again resurrected in the

Lisbon Treaty that proposed similar reforms to the draft Constitution in order to streamline the

workings of the European Union. However unlike the Reform Treaty, when the Lisbon Treaty needed

to be ratified many member states including UK, Poland and the Czech Republic that had previously

decided on holding a referendum passed the Treaty through national parliaments, leaving only Ireland

and Denmark committed to holding a referendum on these important constitutional changes. In France

and the Netherlands the decision to not repeat the public vote was broadly accepted, in spite of the

previous no vote. However in Britain Gordon Brown's decision to not hold a referendum was met with
heavy criticism. Proponents of holding a referendum for constitutional changes to the EU suggest that

such important changes, which affect national sovereignty, need to be ratified by public vote in order to

remain democratic. However opponents argue that referendums are ineffective and that the public

know little about EU constitutional issues and therefore would not vote effectively. This debate will not

cover whether or not reform itself is beneficial, but only the vehicle through which reform should be

agreed upon.


POINTS FOR


POINTS AGAINST

The decision not to hold a referendum directly ignores the wishes of the people and
is therefore undemocratic.
POINT
The Lisbon Treaty and the Constitution have 96% of the same text. Former French President Valéry

Giscard d’Estaing, who wrote the original EU Constitution, has publicly stated that the Lisbon Treaty

is essentially the same as the proposed Constitution [1]. The decision from countries not to hold

referendums in 2007 that they had previously agreed to is a flagrant disregard for the wishes of the

people. Moreover the decision to ratify the Lisbon Treaty through national parliaments in France and

the Netherlands where the 2004 Treaty was rejected in popular vote demonstrates that the decision not

to hold referendums was in the fear that they would be rejected when put to the people. Any decision

that is forced through parliament in the fear that it would fail when opened to the citizens of that

country lacks legitimacy.

[1] Valéry Giscard d'Estaing: The EU Treaty is the same as the Constitution’, The Independent (30

October 2007), viewed on 13 June

2011 http://www.independent.co.uk/opinion/commentators/valeacutery-giscard-destaing-the-eu-treaty-

is-the-same-as-the-constitution-398286.html
COUNTERPOINT
The decision not to hold a referendum was not one taken against the wishes of the people. Firstly,

citizens of France and the Netherlands, who voted no to the Constitution in public vote, accepted the

decision to not repeat a referendum in 2007. Furthermore, the accusation that the two texts are 96%

identical is a crude one that ignores the fundamental difference in meaning that a few words can make

[1] therefore the decision to not hold a referendum to ratify The Lisbon Treaty should not be seen in

conjunction with the result of the Constitution referendum. This demonstrates that the decision not to
hold a referendum was not against the people's wishes: it was largely accepted that accepting

constitutional changes through the elected national parliament was democratically acceptable.

[1] 'The EU Reform Treaty


Major changes need to be put to the people and the people must be trusted.
POINT
The Lisbon Treaty significantly affects the workings of each member country. It gives the European

Union a legal personality, allowing it to sign international agreements and member countries are now

made subject to majority voting [1]. The Lisbon Treaty does not only affect international policies,

criminal law and national justice systems, it also gives power over to the Commission and European

Court. Such major changes must be put to popular vote, the citizens of each EU member state have a

right to legitimise or reject these changes that push for a more centralized European superstate.

Furthermore the will of the people needs to be trusted, if a reform is intentionally ambiguous and

complicated, which was one of the criticisms of the Lisbon Treaty [2], it is the job of the politician to

explain the cause to the public. Voters should be included in the debate and key issues need to be

highlighted not just ignored.

[1] European Commission, Your Guide to the Lisbon Treaty, viewed on 13 June

2011 http://ec.europa.eu/publications/booklets/others/84/en.pdf

[2] Foley, Kathy, ‘Lisbon treat: yes, no or eh?’, Sunday Times (13 January 2008).
COUNTERPOINT
The Lisbon Treaty is limited in significance and has less problematic superstate aspects that the

Constitutional treaty of 2004 such as an official flag, anthem and bill of citizen's rights [1]. The

Constitution wanted to found the European Union on an entirely new basis, whereas the Lisbon Treaty

is a conventional amending Treaty. It is this fundamental difference that justifies the lack of

referendum for the Lisbon Treaty when it was essential for the ratification of the Constitution.

However the association with the previous Treaty would have seen the public wary and progress stifled

as a result. The Lisbon Treaty was more concerned with technical reforms than constitutional

significance and therefore did not need the ratification of the national electorates. The result of a

referendum is more likely to reflect public opinion on the current government than on the proposed

reforms. Furthermore on important foreign policy issues the elected government is better informed to

make decisions than the electorate [2].

[1] BBC News, ‘EU leaders sign landmark treaty’, viewed on 13 June

2011 http://news.bbc.co.uk/1/hi/world/europe/7141651.stm
[2] Parliament, Referendums – for and against, viewed on 13 June

2011 http://www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/9904.htm

improve this

Reform treaties are too important to be left to politicians of the day


POINT
Decisions that affect the national sovereignty of a country should not just be left to elected politicians

who have power for a limited time but should be given to the citizens through direct vote. The nature of

the Lisbon Treaty changed the relationship between member states and Brussels; it is clearly a

constitutional issue and therefore needs to be ratified by all citizens. The Blair Labour Government

held referenda on a whole range of constitutional changes, including not only devolution in Scotland,

Wales and Northern Ireland, but even on whether individual cities should have directly elected mayors

COUNTERPOINT
Democracy itself is the delegating of decision making to elected officials and this is exactly what has

taken place in the government's decision to not hold referendums but pass changes through national

parliaments. Referenda undermines democracy by negating the representative government and

parliamentary sovereignty, they have been chosen as the representatives of the people, by the people,

and therefore have the right to make informed decisions on their behalf about what to do in the nation's

best interests. If there are longer term issues with a government's decision then they can be made

accountable at the next general election.

improve this

HOW DO YOU FEEL NOW, PLEASE VOTE


• FOR
• AGAINST
• Referendums—Arguments for and against


• Claimed positive features of referendums
• 13. Evidence in favour of referendums and citizens' initiatives (a
related device which we discuss in more detail in Chapter 4)
included:
• THAT REFERENDUMS ENHANCE THE DEMOCRATIC PROCESS
• 14. Witnesses referred to arguments that referendums enhanced
democracy by giving voters greater opportunities for involvement.
Caroline Morris, Senior Research Fellow, Centre of British
Constitutional Law and History, Department of Law, King's College
London, cited academic arguments that "referendums are a 'first-
best' form of democracy for which representative democracy (the
'second-best' form) attempts to substitute" (p 127). Professor
Stephen Tierney, Professor of Constitutional Theory, University of
Edinburgh, asserted that referendums could be seen as "'pure
democracy' ... unmediated by representatives; a symbolic reminder
that democratic authority finds its legitimacy in the consent of the
people" (p 48). Professor Graham Smith, Professor of Politics,
Centre for Citizenship, Globalisation and Governance, University of
Southampton, argued that referendums offered the potential "to
reshape the political division of labour between citizens and
legislators" (p 15).
• 15. Professor Bogdanor thought that it was "illusory" in the modern
world "to believe that you can confine legislative matters solely to
parliamentarians" (Q 78). The Government acknowledged
arguments that referendums could ensure that the public are
consulted on significant issues (p 94).
• 16. Peter Browning argued that "at a time when public trust in this
system is probably lower than ever in living memory", referendums
could help restore faith in British democracy (p 112). Nigel Smith
made a similar point (p 144). Unlock Democracy argued that
referendums could help to counteract the sense of cynicism and
powerlessness amongst voters (p 18). The Government stated that
it could be argued that referendums could help strengthen
confidence in the UK's democratic system (p 94).
• 17. Professor Robert Hazell, Director, Constitution Unit, University
College London, argued that referendums could be "an important
legitimising mechanism", by demonstrating that a policy has the
specific support of the public (Q 5), as did Professor Michael
Gallagher, Professor of Comparative Politics, Department of Political
Science, Trinity College Dublin (p 120). Dr Eoin O'Malley, School of
Law and Government, Dublin City University, stated that
referendums could give a decision "democratic weight" (p 129).
Peter Browning suggested that the 1975 referendum on whether
the UK should remain in the European Community had helped to
ensure popular acceptance of the UK's membership, but that the
Government's failure to hold a referendum on the Lisbon Treaty had
undermined its legitimacy in the eyes of some sections of the
British people (p 113).
• 18. The Government stated that it could be argued that
referendums could provide the government of the day with a
mandate to undertake change, and could provide Parliament with
an indication of public opinion on a given issue (p 94). The Rt Hon
Michael Wills MP, Minister of State, Ministry of Justice, said that
referendums could "legitimise a significant change" (Q 229).
• THAT REFERENDUMS CAN BE A "WEAPON OF ENTRENCHMENT"
• 19. In the opinion of some witnesses, an important feature of
referendums was that they make it difficult to reverse a policy that
had demonstrable public support. Unlock Democracy asserted that
they were one of the few ways under the UK's constitutional
settlement that Acts of Parliament could be entrenched: "This is not
to say that the Acts are codified, just that if a measure has been
endorsed in a referendum it would not be politically possible to
repeal it without a further referendum. This is particularly
significant as it ensures that constitutional changes, such as
devolution, have some time to establish themselves rather than
being subject to an immediate repeal if there was a change of
government" (p 18).
• 20. Likewise, Dr Andrew Blick, Federal Trust for Education and
Research, argued that referendums had helped to place new
institutions such as the Scottish Parliament and Welsh Assembly, as
well as the Northern Ireland peace process, on a stable footing
(p 110).
• THAT REFERENDUMS CAN "SETTLE" AN ISSUE
• 21. Some witnesses argued that referendums were able to "settle"
a debate on a controversial issue, at least for a period. Peter
Kellner, President, YouGov, argued that the 1975 referendum on
membership of the European Community "put to bed" the issue "for
a generation" because "the opponents of British membership
accepted that verdict for a period and without the referendum it
might have been re-opened" (Q 45).
• 22. Professor Gallagher referred to the outcome of the Irish
referendum on divorce in 1995, when divorce was approved very
narrowly and then "ceased overnight to be a political issue;
opponents immediately folded their tents following this decision in a
way that they would have been very unlikely to do had the decision
been made by Parliament alone" (p 124).
• THAT REFERENDUMS CAN BE A "PROTECTIVE DEVICE"
• 23. Witnesses saw the value of referendums as a "protective
device", a safeguard against controversial decisions being taken
unless and until public support could be demonstrated. Professor
Hazell opined that this was the case in Northern Ireland, where
people have been told since 1973 that Irish unity will not occur
save with the consent of the people (Q 5).
• 24. Professor Bogdanor asserted that the key to the referendum's
constitutional role was that it should constrain the government of
the day. He argued, for example, that it would now be very difficult
for a government to avoid having a referendum on a devolution
matter (Q 74). Peter Browning argued that it would also be almost
impossible for the UK to adopt the European single currency
without holding a referendum (p 113).
• THAT REFERENDUMS ENHANCE CITIZEN ENGAGEMENT
• 25. Other witnesses opined that referendums enhanced public
engagement with the democratic and political process. Dr Daniel A.
Smith, Associate Professor, Department of Political Science,
University of Florida, asserted that by offering the opportunity to
participate directly in policy-making, they made the public more
likely to participate in political activity, "as they understand that
their participation in the electoral process has real policy
implications" (p 141).
• 26. Caroline Morris suggested that referendums could combat
"political alienation and malaise" (p 127), and Navraj Singh
Ghaleigh, Edinburgh Law School, argued that an appropriately well-
structured system of direct democracy could "create incentives for
engagement" (p 139). Professor George Williams, Anthony Mason
Professor, Faculty of Law, University of New South Wales, argued
that referendums had helped "to generate popular ownership and
legitimacy in Australia's constitutional structure" (p 150).
• THAT REFERENDUMS PROMOTE VOTER EDUCATION
• 27. Some witnesses recommended referendums for the debates
that they could engender to promote political knowledge, as with
Unlock Democracy's mention of "the opportunity for public
education and discourse on a contentious issue" (p 22). Dr O'Malley
stated that referendums allowed "the people and political class to
focus on an issue in quite a concentrated way", thus enabling
citizens "to learn quite deeply about the topic" (p 129). Dr Daniel A.
Smith reported that research into experience in the US, Switzerland
and Canada showed that direct democratic tools enhanced political
knowledge of the issue in question amongst citizens (p 142).
• 28. Professor Bogdanor argued that the 1975 referendum on the
European Community had raised awareness of the issues in
question (Q 78). Likewise, Professor Hazell argued that the
referendum campaigns in Scotland, Wales and Northern Ireland
raised awareness about the proposals for devolved assemblies
(Q 5).
• THAT VOTERS ARE ABLE TO MAKE REASONED JUDGMENTS
• 29. In response to those who queried whether referendums were a
suitable vehicle by which to determine policy on complex issues,[8]
some witnesses asserted that voters are well-equipped to make
reasoned judgments on issues put before them at referendums.
Peter Facey, Director, Unlock Democracy, argued that voters were
"perfectly capable" of making a complex decision, so long as there
was adequate public education (Q 42). Professor Gallagher
suggested that, if pushed too far, "the arguments highlighting the
supposed incompetence of voters to decide on specific policy issues
... can become an argument against allowing people to vote at
elections" (p 121).
• 30. Jenny Watson, Chairman of the Electoral Commission,
considered that "most things can be explained and distilled down to
a reasonably simple premise" (Q 193). Michael Wills MP agreed that
"complex technical issues can with effort, hard work, rigour,
intelligence be distilled down to certain key principles and choices
... it would be a terribly retrograde step to take the view that some
issues are just too complicated to bother the people's heads with.
That would be a return to an aristocratic principle of government
that we have, fortunately, long since rejected in this country"
(Q 238).
• THAT REFERENDUMS ARE POPULAR WITH VOTERS
• 31. Some witnesses suggested that referendums were popular with
the public. Unlock Democracy asserted that this was so, because
they are seen as a fair way of resolving difficult or significant issues
(p 18). Professor Bogdanor asserted that studies of the
international use of referendums showed that people welcomed the
opportunity to participate so long as they thought that their
participation would have some result and was not a "talking shop"
(Q 85).
• 32. Professor Tierney said that while the turnout on ordinary
referendums might be low, evidence suggests that referendums on
"big constitutional issues", such as the Belfast Agreement, the
Danish referendum on the euro, and referendums on independence
in Montenegro and Quebec, produced a high turnout (Q 90).
• THAT REFERENDUMS COMPLEMENT REPRESENTATIVE DEMOCRACY
• 33. A number of witnesses stated that referendums could
complement representative democracy. Professor Bogdanor argued
that "the dichotomy between 'representative' and 'direct'
democracy is ... highly misleading. For the referendum, even in
Switzerland, is used not to replace, but to supplement
representative democracy. There is little danger that it will come to
subvert parliamentary government" (p 45). Professor Michael
Saward, Professor of Politics, Open University, opined that
enhancing the role of the referendum could enhance representative
and parliamentary democracy (p 15). Professor Gallagher stated
that "we cannot point to any case where the referendum has led to
the collapse of a democratic system ... If used sparingly ... and in a
regulated fashion, the referendum can enhance rather than subvert
representative democracy" (p 120).
• 34. A number of witnesses pointed to international experience, for
instance in Australia, New Zealand, and the Republic of Ireland,
where, it was argued, referendums and representative democracy
successfully coexist (QQ 10, 54, pp 19, 133).[9]
• 35. Michael Wills MP told us that it was a "fundamental proposition
that referendums ... should not be any kind of replacement for
representative democracy; they are an augmentation of it in
circumstances where there are fundamental changes" (Q 217).
• Claimed negative features of referendums
• 36. Witnesses recited a number of drawbacks to the use of
referendums:
• THAT REFERENDUMS ARE A TACTICAL DEVICE
• 37. A principal objection to referendums was that they may be
used as a tactical device by the government of the day. Professor
David Butler, Emeritus Fellow, Nuffield College, University of
Oxford, told us that referendums in the UK "are only going to
happen when the Government of the day wants it or when it would
be too embarrassing (because of past promises) to get out of it.
Normally they will have a referendum because they think they are
going to win it and they will not have it if they are not going to win
it. They will just dodge the issue. It is a matter ... of straight
politics" (Q 5).
• 38. Steve Richards, Chief Political Commentator, The Independent,
said that "a leader does not dare hold a referendum unless they are
convinced they are going to win it, so they are tools for leaders to
avoid decisions ... It looks as if they are being rather noble in giving
powers away from themselves to take decisions and giving them to
the voters to do it. The motives for holding them are far more
complicated than that" (QQ 123, 131).
• 39. Peter Kellner argued that the decision to hold the 1975
European Communities referendum "was a constitutional outrage ...
it was wholly to do with holding the Labour Party together" (Q 46).
Other witnesses made similar points (QQ 84, 125). Professor
Bogdanor asserted that the offer of the 1979 devolution
referendums was made for tactical purposes in order to overcome
backbench opposition in Parliament (Q 79).
• 40. Steve Richards argued that the 1997 Labour manifesto "was
almost like a halfway bridge to power and then a lot of the awkward
decisions and debates took the form of promises of referendums—
the euro, Scottish Parliament, London mayor, electoral reform"
(Q 122). He also told us that the decision to hold a referendum on
Scottish devolution was only made because Tony Blair, observing
that a referendum had been proposed on the euro, "did not think
he could go through an election campaign with that contradiction ...
it was not that he thought out of principle 'We must do this'; he
was worried about the contradictions in a Labour election
campaign" (Q 129).
• 41. Michael Wills MP opined that the referendum had been used in
the UK as a "political tool", but did not see anything wrong with
that, because "politics can be a noble profession; it does, at its
best, represent the battle of competing values and ideals and
ideologies" (Q 236).
• THAT REFERENDUMS ARE DOMINATED BY ELITE GROUPS
• 42. Some witnesses argued that referendums tend to be
dominated by elite groups, including politicians, the media, and
wealthy individuals, rather than "ordinary" citizens. Dr Uwe Serdült,
Centre for Research on Direct Democracy (c2d), asserted that "the
arsenal of direct democracy is an institutional weapon for organized
interests (political parties, interest groups, employer's and
employee's associations) and not for the people as such" (p 137).
Peter Browning warned that referendums were rarely if ever free
from influence by politicians and minority groups (p 112). Dr Blick
opined that referendums could give extra influence to the media
and commercial interests (p 110). Steve Richards stated that "the
British media is not necessarily the most reliable institution to
mediate on the complexities of these issues ... I do not think a
referendum on anything to do with Europe, for example, will be
fairly reported" (QQ 122, 147). Michael Wills MP said that "the
whole system can be hijacked by populist and often very wealthy,
very powerful people who can afford to run these campaigns"
(Q 226).
• 43. Several witnesses cited examples. Dr Stuart Wilks-Heeg,
Executive Director, Democratic Audit, highlighted the Californian
experience of citizens' initiatives (see Chapter 4), as an example of
how referendums can "effectively be hijacked by organised
interests, particularly those which have access to substantial
financial resources (i.e. private corporations, political parties and
large campaign organisations)" (p 36). Professor Butler referred to
the first Irish referendum on the Lisbon Treaty, where "a leading,
flamboyant, rich man charged in and moved opinion really quite
substantially in the opinion poll evidence and got a 'no' vote"
(Q 16).
• THAT REFERENDUMS CAN HAVE A DAMAGING EFFECT ON
MINORITY GROUPS
• 44. Professor Gallagher stated that referendums are accused of
allowing majorities to override the rights of minorities (p 120).
Caroline Morris also warned of "the danger that minority rights may
be overridden by populist sentiment" (p 127).
• THAT REFERENDUMS ARE A "CONSERVATIVE DEVICE"
• 45. Some witnesses viewed referendums less as a "protective
device" than as a "conservative device": a block on progress. Dr
Blick asserted that in the UK, referendums were most often
conceived of as "a means of placing a brake on certain
developments", such as European integration (p 110). Steve
Richards told us that, with referendums, "the status quo can often
seem more reassuring and less threatening than ... change"
(Q 151).
• 46. Peter Kellner pointed out that, in Switzerland, women were not
given the vote until 1971, because male voters had rejected votes
for women in a referendum in 1959 (Q 43). Professor Williams
stated that the Australian system, where a majority of states, as
well as a majority of voters, are required to vote in favour of a
change in order for a constitutional amendment to be carried, has
made change to the constitution extremely difficult, if not
impossible (p 150).[10]
• THAT REFERENDUMS DO NOT "SETTLE" AN ISSUE
• 47. Some witnesses argued that referendums did not "settle" the
issue in question. Dr Wilks-Heeg pointed out that the 1970s
referendums in Scotland, Wales and Northern Ireland had not
brought to an end Irish, Scottish or Welsh nationalism, but rather,
the issues were revisited in referendums in the 1990s, with further
referendums planned in Scotland and Wales (p 37).
• 48. Peter Facey told us that "different generations will take
different decisions, in the same way that we do not just have one
election and then expect us all to live with it for the next 50 or 60
years" (Q 45). Steve Richards noted that the 1975 European
Community referendum was only binding on the Labour Party's
position for four years before they wished to change it (Q 125).
• 49. Dr Wilks-Heeg also pointed out that, in the case of other EU
states that have held referendums on EU treaties, governments had
been able to force repeat referendums to get the result they
wanted (p 37). The two Irish referendums on the Lisbon Treaty are
a case in point.
• THAT REFERENDUMS FAIL TO DEAL WITH COMPLEX ISSUES
• 50. Several witnesses argued that referendums were not an
appropriate means by which to take decisions on complex issues.
Dr Blick suggested that referendums could oversimplify a complex
issue into a simple "yes" or "no" option (p 110). Professor Tierney
stated that whereas "elected representatives bring expertise and
time to problems that ordinary citizens don't have; they may be
more detached and hence objective; and they see the bigger
picture of how different issues inter-relate ... a referendum
addresses single issues one by one without proper regard to this
larger canvass" (p 48). Steve Richards was concerned that in issues
of complexity the arguments and technical detail could get lost. He
stated that Parliament was in a better position to make such
decisions (QQ 122, 138).
• 51. Dr O'Malley suggested that it is unrealistic to expect ordinary
citizens to be interested in or qualified to have informed opinions on
important constitutional issues (p 130). Caroline Morris argued that
the New Zealand experience of citizens' initiated referendums[11]
demonstrated how referendums were not well suited to determining
complex questions of law or policy (p 127).
• THAT REFERENDUMS TEND NOT TO BE ABOUT THE ISSUE IN
QUESTION
• 52. Some witnesses argued that referendum campaigns could
become dominated by peripheral issues. Dr O'Malley suggested that
when issues are too complex for voters to understand, other issues
are projected on to the actual questions. He cited the Lisbon Treaty
referendums in Ireland, where abortion and conscription became
major issues (p 129). Peter Browning asserted that a referendum is
often used to express a view on the governing party rather than the
issue in question (p 115). Lord Fraser of Carmyllie said that
referendums could be "a barometer on the attractiveness of the
political party at any given time". He cited the 1997 referendum on
Scottish devolution (when he was Director of the "no" campaign),
which, he argued, voters saw as "a second opportunity, in less than
six months, to indicate why they thought the Tory Party was
unpopular" (Q 101). Daran Hill pointed out that the "yes" campaign
for the 1997 Welsh devolution referendum (for which he acted as
National Co-ordinator), "had an aeroplane flying across South
Wales trailing a banner which said, 'Vote Yes, Vote Blair', which
really had nothing to do with the question being posed at all! It
chimed in with the political mood" (Q 101).
• THAT VOTERS SHOW LITTLE DESIRE TO PARTICIPATE IN
REFERENDUMS
• 53. Other witnesses argued that there was little public appetite for
referendums to be used. Peter Browning stated that while people
may be prepared to vote every four or five years, even then
turnout is falling. On past evidence of referendum turnout in the
UK, he thought that it was doubtful whether voters would turn out
to vote in similar numbers as for elections. He stated that low
turnout would weaken the legitimacy of the result (p 112).
Professor Butler cited the rapid decline in turnout in Switzerland,
often viewed as the European exemplar of direct democracy
(Q 6).[12]
• 54. Professor Michael Marsh, Professor of Comparative Political
Behaviour, Trinity College Dublin, told us that one of the difficulties
with referendums is that voters "do not necessarily want to know,
they have much more important things on their mind ... It does not
fit too well with some of our notions about democratic theory but I
think it is like youth is wasted on the young, democracy is
sometimes wasted on the people" (Q 174).
• THAT REFERENDUMS ARE COSTLY
• 55. Evidence was received about the cost of referendums.
Professor Hazell pointed out that a national referendum costs about
the same as holding a General Election, about £120 million (Q 7).
• 56. Nigel Smith pointed out that referendums cost money and take
time (p 143), and Caroline Morris also referred to "logistical
difficulties" (p 127). Unlock Democracy stated that referendums are
"costly in terms of money, time and political attention and the use
of such resources needs to be carefully considered" (p 25). Dr
Helena Catt, former New Zealand Electoral Commissioner and
former Associate Professor, Auckland University, told us that
referendums are "very expensive to do properly and if you are not
going to spend the money on it, it is not worth doing it" (Q 157).
• THAT REFERENDUMS UNDERMINE REPRESENTATIVE DEMOCRACY
• 57. A number of witnesses thought that referendums undermined,
or had the potential to undermine, representative democracy. Peter
Kellner said that "one has to be very careful about the relationship
of referendums to parliamentary sovereignty and to the principles
of deliberative democracy that underpin parliamentary sovereignty
... I would not couch the argument against referendums in terms of
some cataclysm for parliamentary democracy but I do believe it
weakens parliamentary democracy" (QQ 41, 54). Steve Richards
said that evidence suggested that referendums undermine the
parliamentary process (Q 123).
• 58. Peter Browning stated that the sovereignty of Parliament "is
certainly threatened by the use of referendums. Referendums put
the people before parliament. The sovereignty of parliament
becomes the sovereignty of the people ... Introducing direct
democracy into the political system ... challenges the indirect,
representative democracy that has been the essence of UK
democracy. If the people vote one way, their representatives
another, who should prevail, who is sovereign?" (pp 112-3).
• Conclusion
• 59. Michael Wills MP told us that he was "really alarmed sometimes
when I hear some politicians speak as if measures of direct
democracy are panaceas for all the political challenges that we face.
They are not" (Q 266). Professor Marsh told us that "there are all
sorts of apparent strengths ... The unfortunate thing is that on the
whole it does not do any of those things and quite often it leaves
you worse off than you were before" (Q 157).
• 60. Dr Wilks-Heeg argued that the appeal of referendums was
understandable, but that "they must not be seen as a magic bullet.
More wide-ranging work would first be necessary to reform the
defects in our constitutional arrangements" (p 39).
• 61. Nine national or regional referendums have been held in the
UK since 1973, although only one has been held on a UK-wide
basis. Referendums may become a part of the UK's constitutional
system. Some witnesses stated that once referendums are in the
democratic bloodstream, they are unlikely ever to be removed
(Q 62, pp 136, 144).
• 62. The balance of the evidence that we have heard leads us
to the conclusion that there are significant drawbacks to the
use of referendums. In particular, we regret the ad
hoc manner in which referendums have been used, often as
a tactical device, by the government of the day.
Referendums may become a part of the UK's political and
constitutional practice. Where possible, cross-party
agreement should be sought as to the circumstances in
which it is appropriate for referendums to be used.
• 63. It is therefore necessary to consider when it is appropriate for
referendums to be held and what laws and regulatory framework
should then apply.

https://publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/9904.ht
m
U: threat of opportunity?’ House of Lords European Union Committee (23 November 2006) viewed on 13 June
2011
https://publications.parliament.uk/pa/ld200506/ldselect/ldeucom/273/273.p
df
letter from the Brexit Secretary Dominic Raab along with a Government
Memorandum on the Government’s views on how the procedural arrangements
for the meaningful vote in the Commons agreed in the EU (Withdrawal) Act 2018
should work.
https://www.parliament.uk/documents/commons-
committees/procedure/2017-19/Letter-from-the-Secretary-of-State-DEXEU-to-
the-Chairman-on-section-13(1)-of-the-EU-(Withdrawal)-Act-2018.pdf
Foreign Policy Centre paper “How Investment Treaties Have a Chilling Effect on Human
Rights” (FPC, 2016),
https://fpc.org.uk/wp-content/uploads/2017/05/1803.pdf

separation of powers : judicial independence, sovereignty and conceptual ︎ exibility in the UK


constitution.'

http://dro.dur.ac.uk/21268/1/21268.pdf?DDC71+DDD19+ngbz21+d700tmt
Lee v Ashers- A Recipe for Jurisdictional Confusion?
https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf
Devolution, Brexit, and the Sewel Convention
24th April 2018
https://consoc.org.uk/wp-content/uploads/2018/04/Gordon-Anthony-
Devolution-Brexit-and-the-Sewel-Convention-1.pdf
European Union, the Treaty of Lisbon, and “Justice and ... March 2010 97 W ith
the vote of the Irish in a referendum and the signature of a reluctant Czech
President, the European Union has begun the process
https://s3.amazonaws.com/fedsoc-cms-
public/library/doclib/20100331_RosenzweigEngage11.1.pdf
European Union • Treaty of Amsterdam ... – Strengthened role of European Parliament in
codecision process ... The European Union • Failed Irish referendum
https://case.edu/lifelonglearning/sites/case.edu.lifelonglearning/files/2018-
03/Senior-Scholars-European-Union-Spring-2017-Week-6-March-21-
Powerpoint.pdf
Referendum Euphoria to Referendum Phobia – How EU Member States Framed
Their Decision on the Ratification Procedure of the Constitutional Treaty in
Comparison to the Treaty of Lisbon
http://www.cap.lmu.de/download/2008/2008_Ratification_Seeger.pdf


Impacts of the Lisbon Treaty on the EU Trade Policy Identification of Possible
New Problems related to the EU Competences, to the EU Membership in
International Organizations and to the Role of the European Parliament
http://www.g-casa.com/conferences/budapest/papers/Sterbova.pdf
European Parliament elections held in June 2009 had the lowest ever voter
turnout (forty-three percent). See European Parliament Election Results,
http://www.europarl.europa.eu/about-parliament/files/home-page/en-ep-
brochure.pdf
EU Charter of Fundamental Rights is not an integral part of the Treaty, however,
it is made binding by referring to the text as adopted as a non-binding
declaration in 2000 during the Nice Treaty negotiations
http://www.europarl.europa.eu/charter/pdf/text_en.pdf

Parliament's role in ratifying


treaties
Published Friday, February 17, 2017
Parliament now has a statutory role in ratifying treaties.
As this Commons Library briefing paper explains, the
Government must lay most treaties before Parliament for
21 sitting days before it can ratify them, and the Commons
can block ratification indefinitely. However, there is no
statutory requirement for a debate or vote, and parliament
cannot amend treaties.
Jump to full report >>

The Government makes treaties…


The UK Government is responsible for negotiating, signing and
ratifying the 30 or so international treaties involving the UK each
year.
The starting point for treaty ratification in the UK is that the
Government has the power to make international treaties under
its prerogative powers. But this cannot automatically change
domestic law or rights, and – as the Supreme Court recently
ruled in the Miller case – it cannot make major changes to the
UK’s constitutional arrangements without Parliamentary
authority.
…but Parliament has a limited role
Parliament (and/or the devolved legislatures) is therefore
involved if domestic law needs to be changed in order to
implement a treaty – but this does not give Parliament the power
to approve, reject or amend the treaty itself. It also now has the
opportunity to say that a treaty should not be ratified, but it does
not have to debate or vote on most treaties.
This is in contrast to some other countries, where parliaments
are involved in treaty-making and may need to give their consent
before ratification (often because treaties can automatically be
part of domestic law that can be relied on in domestic courts).
The 2010 Act: new power for the
Commons to block ratification
Part 2 of the Constitutional Reform and Governance Act 2010
requires the Government to lay before Parliament most treaties it
wishes to ratify, along with an Explanatory Memorandum. This
gave statutory form to part of a previous constitutional
convention on parliamentary involvement with treaties (the
Ponsonby Rule).
The 2010 Act also for the first time gave parliamentary
disapproval of treaties statutory effect, and effectively gave the
House of Commons a new power to block ratification. The
process is this:
The Government may not ratify the treaty for 21 ‘sitting days’ (ie
days when both Houses were sitting) after it was laid
before Parliament.
If within those 21 sitting days either House resolves that the
treaty should not be ratified, by agreeing a motion on the
floor of the House, the Government must lay before
Parliament a statement setting out its reasons for
nevertheless wanting to ratify.
If the Commons resolves against ratification – regardless of
whether the Lords did or not – a further 21 sitting day
period is triggered from when the Government’s statement
is laid. During this period the Government cannot ratify the
treaty.
If the Commons again resolves against ratification during this
period, the process is repeated. This can continue
indefinitely, in effect giving the Commons the power to
block ratification.
Neither House has yet resolved against ratification of a treaty
under these provisions, and there are limited options for how
they can do so.
Despite looking like a major change, the provisions of the 2010
Act have several exclusions and limitations.
Exclusions
Some types of treaty are excluded from the 2010 Act:
exceptional cases
Memorandums of Understanding, and treaties that do not require
ratification
some EU Treaties which already require an Act of Parliament or
even a referendum
‘double taxation’ agreements which require an Order in Council
Devolved executives and legislatures
The devolved executives and legislatures have very limited
involvement in treaties, even though they may be responsible for
applying them.
Treaty-making remains the exclusive responsibility of the UK
Government, but it has agreed to cooperate on treaty negotiation
and implementation
No requirement for debates or votes
Although the 2010 Act puts on a statutory footing Parliament’s
opportunity to scrutinise treaties, it does not require Parliament
to scrutinise, debate or vote on them (and it rarely does so).
There have been some calls for a process that results in more
debates and votes on treaties, perhaps involving the committees,
but Parliament has so far been reluctant to set up new
mechanisms for treaties.
This is in contrast to many other countries where parliamentary
approval is required at least for certain defined categories of
treaty. Even some other ‘dualist’ countries have incorporated
some kind of parliamentary scrutiny of treaties, for example
Australia which has a dedicated Joint Standing Committee on
Treaties.
Parliament can only oppose (or tacitly accept) a treaty in full – it
cannot amend treaties.
Parliament cannot amend treaties
There is no general requirement or mechanism for parliamentary
scrutiny of (non-EU) treaties while the Government is negotiating
them. So Parliament is not usually involved at the stage when
changes could still be made to the text of a treaty.
This is fairly typical; the US is rare in allowing the Senate
Committee on Foreign Relations to propose amendments to
treaties.
There have been several proposals for parliamentary involvement
before signature, to minimise disagreements when it comes to
ratification, but there is also considerable opposition to such
ideas.
However, Brexit has re-awakened the debate on how Parliament
should be involved with treaties. Many of the proposed
amendments to the European Union (Notification of Withdrawal)
Bill concerned Parliament’s role in the negotiating process or
approving the final agreement. Although none of them passed,
the Government did agree to give Parliament a vote on a
withdrawal agreement before it is signed. And the likelihood of
subsequent treaties having a major effect domestically, for
instance on trade, might reignite calls for more parliamentary
scrutiny of treaties.
https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN05855
The Role of the European Parliament After the Lisbon Treaty
http://archivesicdt.demkk.hu/documents/events/Presentaion_Pascu.pdf
Lisbon Treaty, the EU has a greater role to play in matters related to internal ...
EU Counterterrorism ..
http://www.egmontinstitute.be/content/uploads/2012/09/GlobalCT-
eu_counterterrorism_after_lisbon.pdf?type=pdf
THE LISBON TREATY’S IMPACT ON U.S.‐EU TRADE, INVESTMENT AND
FINANCE Committee on International Trade
https://www.nycbar.org/pdf/report/uploads/20072037-
TheLisbonTreatysImpactonUS-EUTradeInvestmentandFinance.pdf

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