There is perhaps understandable confusion in some sections of the public about why the European Migration pact – described as a monumental transfer of sovereignty to Brussels by some opponents, including Senator Michael McDowell – is not being put to a referendum, and why the Government is not required to put it to a referendum.
The answer, in short, is that the Irish people have already voted on it in a referendum.
In 2008 and 2009, Irish voters were twice asked to vote on the Lisbon Treaty. (Full disclosure, in a former life this writer campaigned with Libertas for a “no” vote on both occasions).
There were no changes to the Lisbon Treaty between the two referendums – the basic text of the document was identical for both. The only difference was that before the 2009 re-vote, the Irish Government secured a protocol to be attached to the treaty, which amounted to a series of promises by other member states as to how they would interpret the text of the treaty. The other member states collectively agreed that they would interpret the treaty in a way that would ensure that Ireland retained full control over its abortion laws, tax rates, and neutrality and defence policy. In addition, member states agreed to keep the principle of having one EU commissioner per country, though this was not included in the text of the protocol.
The original treaty of Lisbon, passed by Irish voters in 2009, states the following under article 63. I won’t quote the full article 63 and 63a here, but feel free to read the whole thing for yourself. Here’s the important bit, though:
The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.
This, in essence, is the legal basis for the EU migration pact.
Of course, Ireland does have the right, should it choose, to opt out of the migration pact. This right was granted to us in 2016, as part of the “new deal for Britain” granted to David Cameron in a bid by the EU to thwart Brexit. That document is called protocol 21, and it can be read here. Essentially it grants Ireland the right to opt out of measures relating to the operation of Article 26 of the Treaty on the Functioning of the European Union (TFEU) which was amended by the Lisbon Treaty (this is all very sleep-inducing, I know).
Without going into further excruciating detail, the legal position is basically as follows:
In 2009, Irish people ratified the Lisbon Treaty. That treaty contains the legal basis for enacting what is now being called the EU migration pact. Ireland has the right to opt out of that migration pact should it wish to, but it has no obligation to opt out.
A referendum under the Crotty Judgment is required when sovereignty is to be transferred away from Dublin. That is why we were required to hold two referendums on Lisbon – because it transferred significant sovereignty to the European Union.
It is also, however, why we are not required to hold one on this occasion. In essence, we have already made the decision to transfer sovereignty over migration to the European Union – it’s just that up until now, the EU has never chosen to exercise that sovereignty. Perhaps a decent analogy might be planning permission: Getting planning permission to build a house doesn’t actually oblige you to build the house. In the case of the EU and the Migration Pact, we essentially gave them planning permission in 2009, but they’re only building the house now.
There are, at present, two people seeking injunctions in the High Court to prevent the Oireachtas from ratifying the Migration Pact. One of these is being taken by an unsuccessful council candidate in the recent local elections, Michelle Keane. The other is being taken, in her own name, by Senior Counsel Una McGurk SC. One cannot pre-empt the judgment of the courts in these matters, but the Government’s defence is likely to be broadly in line with what I’ve written above, and at least two other senior counsel I’ve spoken to in recent days believe that the Courts will find siding with the Government on this matter relatively straightforward.
Of course, the Government is always free, should it wish to, to hold a consultative referendum on this matter – but it simply does not wish to, and there would be no political advantage to them in so doing.
None of this, it hopefully need not be said, is an endorsement of the contents of the pact. But it is exceedingly likely that, should it pass as expected in the Oireachtas next week, it will only be at the next General Election when voters, if they wish to cast a vote on the wisdom of the pact, will have a chance to do so.