British Brinkmanship and Gaelic Games:Referendums as the new Normal?

Imelda MaherImelda.maher@ucd.ie

1UACES Cork 2014

Topic/Approach/Aim

• Treaty ratification in the UK and Ireland

• Law and Politics

• Explore the role of constitutional law as a (political) opportunity structure

Szczwerbiak & Taggart, 2008; Maher & Hodson, 2015

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Dermot Hodson and Imelda Maher

• ‘British Brinkmanship and Gaelic Games: EU Treaty Ratification in the UK and Ireland from a Two Level Game Perspective’, BJPIR, Early View (2013)

• ‘Euroscepticism and Constitutional Law: Comparing Organised Opposition to the EU in Ireland and the UK’ in New Dimensions in Euroscepticism and Opposition to the EU S. Usherwood, N. Startin, S. Guerra (eds) EE 2015

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EU Treaty Trends

• Increased recourse to Treaty revision (revisions + accessions + intergovernmental)

• Now three revision procedures under Lisbon:– Ordinary – Possible convention– Simplified

• but note unanimity at EU level remains (Closa, 2013)

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EU Treaty Trends at National Level1. Greater role for national parliaments2. More referendum locks e.g. Denmark,

France, Ireland, Portugal, Slovakia, UK3. Courts more involved in ratification processes

12 Lisbon casesAustria, Belgium, the Czech Republic, Denmark, Finland, France,

Germany, Hungary, Latvia, Poland, Slovenia, and the United Kingdom

And EUCJ brought into the Treaty revision in C-370/12 Pringle

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Two-level Legitimacy Approach• Approach challenges Putnam (1988) view that

governments have a privileged position in two-level game

• Concerns re EU legitimacy and democracy lead to (further) constitutionalisation of new forms of legitimacy in MS

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Legitimacy

Authority

• Government primacy over treaty revision

• by parliaments, the people (referendums and court cases)

• Government response?

Procedural legitimacy

• Persuasion

• Action linked to values, including trust

Ostram, 1998; Keohane, 2001

Keohane 2001; Ostram, 1998

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Trust

• Fragile, dynamic, constant renewal• Institutionalised distrust i.e. public actors

called to account for trust invested in them (Braithwaite, 1998)

Q: How is the virtuous cycle of trust created/ undermined through EU ratification processes?

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How does this analysis translate to the treaty ratification experience of UK and Ireland?

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EU Act 2011 – UK Tying Hands?

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Hands Tied

1. Increased Parliamentary oversight2. Increased scope for judicial review3. Qualified commitment re referendum

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Effects

1. Frustration for organised EU opponents (Bill Cash MP amendment to 2011 Act within 2 mths)

Image: Michael Crabtree: Reuters12

Effects

Increased campaign for in-out referendum and Cameron’s post-2015 election promise

Picture: China Daily 13

Effects

• Increased risk of voluntary defection (Putnam)• Also increased risk of other MS ‘walking away’

and refusing concessions• Hence Cameron fails to secure SEM

concessions on Fiscal Compact Treaty with MS going ahead without UK (and Czech Republic)

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Ireland

Crotty (1987)

Image: Irishcentral.com

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• Referendum required where changes go beyond essential scope or objectives of the EU

• Very low threshold as it applied to foreign policy cooperation

• Legally risky NOT to hold referendum (but see Pringle, 2012)

• Supreme Court final arbiter of relationship between the constitution, the EU, the people and the government

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Date Treaty Yes (%) No (%) Result Turnout 10 May 1973 (3rd) Accession 83.09 16.91 Accepted 70.88 %

26 May 1987(10th)

Single European Act

69.92 30.08 Accepted 44.09%

18 June 1992(11th)

Maastricht 69.05 30.95 Accepted 57.31%

22 May 1998(18th)

Amsterdam 61.74 38.26 Accepted 56.20%

7 June 2001(26th)

Nice 46.13 53.87 Rejected 34.79%

19 October 2002(26th)

Nice 62.89 37.11 Accepted 49.47%

12 June 2008(28th)

Treaty of Lisbon 46.60 53.40 Rejected 53.13%

2 October 2009(28th)

Treaty of Lisbon 67.13 32.87 Accepted 59.00%

27 June 2012 (30th)

Stability Treaty EMU

60.37 39.63 Accepted 50.53%

Irish Referenda on EU Treaty Changes, 1973-2009

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Incomplete Info at Level 1

• Difficult to anticipate national sticking points• Main issues in Ireland

– Sovereignty– Neutrality– Social issues

Ireland: soft euroscepticism (Laffan & O’Mahony, 2008)

Note: All voting citizens have standing in court

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Main issue is NOT whether or not there will be a referendum (cf Pringle)

but how and what information is provided

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Role of CourtsFraming public discourse on referendum• No public funding• But government can

provide impartial, general information and

• Argue its own position• Equal broadcast time• ‘Material affect’ required to

annul referendum

Cases

• (McKenna, no. 2 1995)

• (Doherty, 2012)

• (McCrystal, 2012) • (Coughlan, 2000) • (Hanafin, 1996, confirmed

in Jordan, 2014 (on appeal))

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The public would be repulsed by the ‘terse and almost incomprehensible verbiage of the lawyer’

Hogan J. in Doherty 2012

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Effects

• Referendums common – but not in/out votes• Sharp distinction between parliamentary and

referendum phase• Referendum Commission ad hoc• ‘Bitty’ constitutional provision (cf affirmation

of commitment to EU in Lisbon amendment)• Judicial review accessible

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Effects II

• Re-runs less likely in the future?• Higher levels of popular and parliamentary

support for EU in Ireland make possibility of walk away by other MS less likely than for the UK.

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Conclusion I

• Risk of partial defection and treaty failure grows greater

• Political strategies for ratification are essential (Closa, 2013)

• But note significance of legal context in shaping/limiting/providing opportunities for those strategies

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Conclusion II

• Two-level legitimacy in underpinned by unanimity at EU level

• At national level there seems to be augmented roles for parliament, courts and people in treaty ratification processes driven by a need for greater legitimacy further increasing uncertainty around ratification.

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