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

1. British Brinkmanship and Gaelic Games:Referendums as the new Normal? Imelda Maher Imelda.maher@ucd.ie • UACES Cork 2014

2. 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

3. 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

4. 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)

5. EU Treaty Trends at National Level • Greater role for national parliaments • More referendum locks e.g. Denmark, France, Ireland, Portugal, Slovakia, UK • Courts more involved in ratification processes 12 Lisbon cases Austria, 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

6. 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

7. Legitimacy Authority • Government primacy over treaty revision • Challenged 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

8. 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?

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

10. EU Act 2011 – UK Tying Hands?

11. Hands Tied • Increased Parliamentary oversight • Increased scope for judicial review • Qualified commitment re referendum

12. Effects • Frustration for organised EU opponents (Bill Cash MP amendment to 2011 Act within 2 mths) Image: Michael Crabtree: Reuters

13. Effects Increased campaign for in-out referendum and Cameron’s post-2015 election promise Picture: China Daily

14. 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)

15. Ireland Crotty (1987) Image: Irishcentral.com

16. 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

17. Irish Referenda on EU Treaty Changes, 1973-2009

18. 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

19. Main issue is NOT whether or not there will be a referendum (cfPringle) but how and what information is provided

20. Role of Courts Framing public discourse on referendum Cases (McKenna, no. 2 1995) (Doherty, 2012) (McCrystal, 2012) (Coughlan, 2000) (Hanafin, 1996, confirmed in Jordan, 2014 (on appeal)) • No public funding • But government can provide impartial, general information and • Argue its own position • Equal broadcast time • ‘Material affect’ required to annul referendum

21. The public would be repulsed by the ‘terse and almost incomprehensible verbiage of the lawyer’ Hogan J. in Doherty 2012

22. 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

23. 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.

24. 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

25. 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.