Permanence of debt brake “may not be constitutional"

A “debt brake” that sought to be “permanent and binding,” as envisaged in the proposed EU Permanent Austerity Treaty, could be unconstitutional, according to the professor of constitutional law at TCD, Gerry Whyte.

The Government has referred the proposed treaty to the attorney-general for her opinion on whether it will require a referendum, and has said that if not it will legislate to give effect to it.

Prof. Whyte told the Irish Times that any assumption that ordinary legislation would be sufficient to meet the terms of the proposed treaty should be “stress-tested.” “Legislative provisions do not have a ‘permanent character’,” he said, “inasmuch as it is always open to the Oireachtas to amend legislation and, in my opinion, it is not constitutionally open to the Oireachtas to put any Act beyond amendment.”

He pointed out that article 3 (1) of the proposed treaty required measures to reduce the structural deficit to 0.5 per cent of GDP “through provisions of binding force and permanent character, preferably constitutional, or otherwise guaranteed to be fully respected and adhered to throughout the national budgetary processes.” However, he said that a majority of the Supreme Court in the Crotty case in 1987 (which found that a referendum was necessary to ratify significant changes to EU treaties) held that an organ of the state cannot agree to circumscribe or restrict any unfettered power conferred on it by the Constitution.

In the judgement Mr Justice Walsh said that the freedom to form economic policy was an aspect of the state’s sovereignty. This meant that article 3 (1) of the treaty would have to be protected by article 29.4 of the Constitution, which ratified the Maastricht Treaty, if it was to be constitutionally valid. However, article 29 refers to treaties of the European Union, whereas the proposed treaty will only be a treaty agreed between 25 of the 27 member-states, so it will not be covered by article 29.

“Given the UK and the Czech Republic have opted out of the proposed treaty, it would seem very difficult to argue that the treaty is ‘necessitated’ by our membership of the EU,” Prof Whyte said.

Dr Gavin Barrett of UCD agreed that the proposed treaty was not protected by article 29, but he pointed out that all legislation, when passed, is “of binding force and permanent character.” If the Government tried to make the proposed treaty more permanent than any other law, it would run into constitutional difficulties, he said.