Submission from The People’s Movement for the Northern Ireland Affairs Committee’s inquiry into Northern Ireland and the EU Referendum (EUN0013)
1. Constitutional referendum required for Ireland to ratify “ever closer union” deal
1.1 The commitment of the European Council to amend the EU Treaties at some future date – as long as the UK remains in the EU – so as to exempt the UK from the implicit commitment to the “ever closer Union” referred to in Art.1 TEU and the Treaty Preamble raises important legal and constitutional issues not only for the United Kingdom but for Ireland as well.
1.2 Article 29.4.3 of the Constitution of Ireland, which was inserted following the Irish referendum on the Treaty of Lisbon in 2009, states that: “Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples.”
1.3 Article 29.4.6 of the same Constitution gives European Union law primacy over any contrary provision of the Irish Constitution, and other sections of the same Article refer to other aspects of the EU.
1.4 Article 2 of the Constitution of Ireland regards all those Irish people born in the island of Ireland to be part of the Irish nation and as such to be constitutionally entitled to Irish citizenship - and implicitly to European citizenship, which comes as “an additional" citizenship to Irish citizenship (Art.20 TFEU). This includes UK citizens who are born in Northern Ireland as well as Irish people living in Britain.
1.5 We are advised that any change to the EU Treaties that might impinge on the fundamental character of the European Union as it is referred to in the Irish Constitution, or that might impinge on Irish sovereignty with regard to the EU, or that might affect the citizenship rights of Irish citizens, whether as regards the European Union or the Irish State, would require a successful constitutional referendum in the Republic of Ireland to validate it.
1.6 The present position is that all Irish people living on the island of Ireland, regardless of whether they live in the Republic of Ireland or Northern Ireland, share a legitimate expectation that they will be brought politically closer together and share a developing common citizenship, whether as Irish citizens or as EU citizens, in relation to a European Union that constitutes an “ever closer union” of European peoples and is oriented under the Treaties towards an eventual political union.
1.7 The prospect that membership of a developing European Union would help to bring the people on both parts of Ireland closer together politically was a significant element in securing the assent of the Republic’s citizens to joining the then EEC in their 1972 Accession referendum and in persuading them to approve the subsequent SEA, Maastricht, Amsterdam, Nice and Lisbon Treaties by referendum also.
1.8 A commitment by the European Union Governments to a future EU Treaty change that would alter the commitment of the United Kingdom to “ever closer union” under the EU Treaties (v. Art. 1 TEU and Preamble) and implicitly the right of UK citizens, including Irish citizens living and voting in Northern Ireland and in Britain, to be part of such a closer union, would arguably alter significantly the character of the Union which the Irish State is committed to under its Constitution.
1.9 It would have the effect of altering the citizens’ rights and legitimate expectations of Irish people in both parts of Ireland with regard to the currently existing Union. This is because such an EU Treaty change would be an implicit commitment to alter the character of the rights and entitlements of Irish citizens in Northern Ireland and in Britain under both Irish and European law and such a change to the EU Treaties would require a referendum in Ireland because of its possible impact on the citizenship rights and legitimate political expectations of Irish people under both the Irish Constitution and EU law, or maybe on some other aspects of the Constitution. This issue would practically arise in the event of the majority of UK citizens voting to remain in the EU in the upcoming June referendum.
1.10 One would expect a future Irish Government advised by its Attorney General to share this view in the event of the majority of UK citizens voting to remain in the EU in the upcoming June referendum, when this issue would practically arise.
1.11 But in the event that the Irish Government failed to take this view it would be open to any Irish citizen to launch a constitutional action in the Irish Courts to challenge the failure to institute such a referendum.
1.12 So if such a change were to be made in the EU Treaties in the future and the Irish Government failed to hold a successful constitutional referendum to validate it in the Republic of Ireland, it is quite possible, even perhaps likely, that there would be a legal challenge in the Republic with a view to obtaining a referendum that might either validate it or secure its invalidation.
1.13 The matter would then fall to be decided by the Irish Supreme Court, which is the ultimate interpreter of the Irish Constitution and the rights of citizens under it. This occurred with the constitutional action taken by Mr Raymond Crotty in 1986, which challenged the then Irish Government’s preferred mode of ratification of the Single European Act.
1.14 The legal authorities whom we have consulted are of the view that such a constitutional action would stand a reasonable chance of succeeding, which would lead to a referendum in the Republic on the envisaged change in the EU Treaties in so far as it impinged on the Irish Constitution and the civil rights of Irish citizens under it.
1.15 In the event of such an Irish referendum having to be held, the envisaged change to the EU Treaties would have to remain uncertain until it had been validated in accordance with the appropriate constitutional procedures of the Republic of Ireland.
2. Exempting New Irish Immigrants from social benefit curbs impossible if UK remains in EU
2.1 Also if Britain votes to stay in the EU and the Government goes ahead to cut social benefits for new EU immigrants, it must hit Irish emigrants to the UK and not just Polish or French ones. Irish migrants cannot be exempted because of the common Anglo-Irish travel area.
2.2 It is misleading or fallacious to suggest that Irish migrants can be exempted because of Protocol 20 of the EU Treaties which deals with travel and border controls. It has nothing to do with a right of all migrant EU citizens to be treated in the same way as regards social benefits in whatever EU State they move to – which is a right governed by EU law.
2.3 It is relevant to note that these matters have nothing to do with the long established Anglo-Irish free travel and free movement area and related issues which are a matter for the respective Governments of the two States and are referred to in Protocol 20 of the EU Treaties
3. Claims of adverse consequences of “Brexit” for Northern Ireland/Republic of Ireland
3.1 In recent months the Irish State-sponsored Economic and Social Research Institute (ESRI) has produced a lurid report on what might happen if the UK left the EU and Ireland stayed in – with Britain facing significant EU tariffs, customs posts again on the North-South Border, alleged danger to the IRA/Unionist “peace process” etc. This report from which other documents have drawn heavily has painted a very worst case scenario of what might happen, with high tariffs between the UK and a 26-State EU, such that even some Irish europhiles have criticized it as exaggeration.
3.2 The ESRI has not got a good record in regard to EU matters. It is substantially dependent on the Irish Government for its own funding and on major policy issues its policy documents normally reflect Irish Government policy.
3.3 The same ESRI championed Irish membership of the EU’s currency bloc, the Eurozone, which has been a particular disaster for Ireland. The ESRI had argued in favour of joining the Eurozone, when it was established in 1998/9, the principal benefit of which was stated to be indefinitely low interest rates!
3.4 The most prosperous period in modern Irish economic history was the period of the so-called “Celtic Tiger” economy between 1993 and 1999, when the Republic, for the only time in its history, followed an independent exchange rate policy, effectively floating its currency, which greatly added to its competitiveness, and had annual economic growth rates of some 8% a year.
3.5 At the time Ireland needed higher interest rates to restrain its “Celtic Tiger“ boom. But Eurozone interest rates in the early 2000s, which were now decided by the European Central Bank, were set low to suit Germany and France. This made the Irish boom “boomier”, as then Taoiseach Bertie Ahern put it.
3.6 Unsuitably low interest rates stoked the property bubble that followed, as happened also in Spain. Before joining the Eurozone the Republic’s bank borrowings in foreign currency had traditionally been low. They then shot up - from the equivalent of 10% of GDP in 2003 to 60% of GDP in 2008
3.7 The same ESRI that issues such dire warning against a British exit from the EU saw no dangers in the Republic adopting the currency of an area with which it does just one-third of its trade - 37% of exports, 28% of imports.
3.8 Even if the Republic of Ireland remains in the EU when Britain leaves, it is completely open to both governments to maintain the common British-Irish travel area, something that long antedated the establishment of the EU and is in no way dependent on it.
3.9 Scare-mongering about passport controls being established along the North-South border in Ireland or for people travelling between the two countries is just that – scare-mongering.
3.10 The common Anglo-Irish travel area is a matter for the two governments and is not the EU’s business. Free movement between the two States has existed since 1923 and will not be affected when Britain leaves the EU to join the world.
3.11 Free trade between Ireland and Britain will continue when Brexit happens. The UK imports more from the EU than it exports to the EU. This makes it the EU’s biggest customer, larger than China and the USA. No business, let alone the EU, would want to cut off ties with such a valuable customer as Britain.
3.12 The Northern Ireland “peace process” has nothing to do with the EU and is a matter solely for the British and Irish Governments and the leaders of the Unionist and Nationalist communities in Northern Ireland. In so far as the EU gives money towards various North-South schemes that are notionally linked to the “peace process”, this is mostly British money which UK taxpayers have already paid to Brussels that is being recycled. The UK Government should have more money available for such purposes outside the EU than inside it, for it would no longer be the major net contributor to the EU budget that it is at present.
3.13 There is no reason therefore why Northern Ireland should suffer from any diminution in funding as a result of changes to the Single Farm Payment, Rural Development Fund, Structural Funds or Peace funding. Outside the EU the UK Exchequer should have more money, not less, to finance the objectives of these schemes.
3.14 In so far as Northern Ireland farmers get funds from Brussels under the Common Agricultural Policy, to which the UK is a major net contributor, there should in principle be more such funding available outside the EU than inside. The same goes for various Regional and Community funding that at present comes to Northern Ireland from the EU.