The Crotty case and EU Treaty Referendums in Ireland

Maria Cahill

University College Cork

Overview

In Ireland, referendums to change the Constitution are a rather common affair. There have been forty-one since the Constitution was adopted in 1937, with twelve in a ten-year period from 2009 until 2019. The 1987 case of Crotty v. An Taoiseach [1987] IR 713 is a landmark judgment of the Irish Supreme Court both because of its impact on the doctrine surrounding popular referendums in Ireland and because of the impact that it has had on the process of European integration. The question posed to the Court in the case was whether the Single European Act, a treaty agreed by the then twelve Member States of the then European Economic Community in 1986, could be ratified by the Parliament or whether it needed to be put before the Irish people in a referendum. 

The Supreme Court held unanimously that Title II of the Single European Act, which provided for a shift from unanimity to qualified majority voting in legislative decision-making and established the Court of First Instance, could be ratified by Parliament. However, a majority of 3:2 held that Title III of the treaty, which involved some cooperation in foreign relations, should be laid before the people for their approval. 

In the ensuing referendum, the Irish people voted in favour of the Single European Act. In subsequent referendums, they accepted the Maastricht Treaty and the Treaty of Amsterdam that followed. However, they rejected the Treaty of Nice in 2001 and the Treaty of Lisbon in 2008. As a result, those treaties could not be ratified by the Irish government and, therefore could not come into force across the European Union. Both times, the Irish referendum process became a subject of European debate as diplomatic negotiations were conducted and eventually, both treaties were ratified following successful second referendums. 

Beyond the political fallout, the Crotty case has been the subject of much academic commentary over the years. Moreover, it has been a precedent for subsequent significant Supreme Court decisions, including Pringle v. Government of Ireland (2012) and Costello v. Government of Ireland (2022) on the constitutionality of government attempts to legislatively ratify the European Stability Mechanism and the EU-Canada Comprehensive Economic and Trade Agreement respectively without holding referendums. The Crotty judgment, in as much as it establishes that the people will sometimes have a constitutional right to vote on international treaties that cause changes to the national constitutional arrangements, remains one of the fundamental orienting judgments in Irish constitutional law and an indispensable part of the canon.  

The Context

The context for the Crotty judgment is Ireland’s firm commitment to popular sovereignty. The constitutional amendment process in Ireland is unusual for requiring that a popular referendum is needed every time the Constitution is changed. Article 46 of the Constitution provides that “any provision” of the Constitution may be amended, and that the procedure for achieving such an amendment is that it should be passed by both Houses of Parliament and then submitted by referendum to the people. Article 47 provides that the referendum proposal must be approved by a simple majority of votes cast. 

The specifics of the referendum process are manifestations of the fundamental principle of popular sovereignty, enshrined in Article 6 of the Constitution, which provides that:

“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.” 

Ireland’s history as a former colony with a long struggle for independence over hundreds of years helps explain its commitment to popular sovereignty. As one of our senior judges noted recently:  

“The Constitution envisaged a plebiscitary as well as a parliamentary democracy… It may thus be said, adapting freely the words of Holmes, that the theory of popular sovereignty for which Griffith argued and Pearse fought and Collins died and de Valera spoke and Hearne drafted and Henchy wrote and Walsh decided has become our own constitutional cornerstone. It is that very cornerstone on which the entire referendum edifice is constructed”. 

Having achieved full independence in 1937, Ireland joined the European Economic Community on 1st January 1973, following a successful referendum in favour of membership. The Single European Act was the first European treaty that was agreed subsequent to Ireland becoming a member. 

The Case

Raymond Crotty, the plaintiff in this case, secured an interlocutory injunction at 5 pm on Christmas Eve, 1986, preventing the government from proceeding with ratification of the Single European Act. The High Court ruled that since the plaintiff raised questions which were important to every citizen involving the values and rules of the Constitution, he did have locus standi to take the case. The full hearing was a challenge to the legislation that purported to ratify Title II and to the government’s plan to ratify Title III.

Crotty’s argument was that the entire treaty needed to be put before the people for their approval. Since the Irish people had agreed by referendum to membership of the European Economic Community (as it then was), any changes to the nature of the arrangements would also require their approval. In contrast, the government argued that when Ireland joined the European Economic Community, it had joined a “dynamic and developing” entity, and the Irish people’s consent through the referendum extended to amendments of the treaties that were “within the original scope and objectives” of the treaties as they stood in 1973. 

Essentially, the case turns on the balance between the power of the government to conduct external relations and agree to treaties in Ireland’s name on one hand, and the power of the people as guardians of the Constitution to have the last word on the political arrangements that govern them, on the other. In a previous case on the same general question, which concerned a treaty that had been agreed between the United Kingdom and Ireland as part of the efforts to bring peace in Northern Ireland, the Supreme Court had held back from reviewing the treaty and declaring it unconstitutional, finding that: 

“the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution”.

The Decision

Since Parliament had already ratified Title II, the Court could only issue one unanimous judgment on the constitutionality of the relevant legislation for procedural reasons. The five Judges found that the legislation was not unconstitutional. In doing so, the Court laid down a test for determining whether the amendments fell within the “essential scope and objectives” of the treaties as they had been previously approved by the Irish people:

“In discharging its duty to interpret and uphold the Constitution the Court must consider the essential nature of the scope and objectives of the Communities as they must be deemed to have been envisaged by the people in enacting Article 29, section 4 subsection 3. It is in the light of that scope and those objectives that the amendments proposed by the Single European Act fall to be considered.”

Title III, on the other hand, had not yet been ratified by Parliament, and the subject-matter – foreign relations – was more politically sensitive. Could the government, vested by the Constitution with exclusive executive power in external relations, agree to conduct foreign policy in consultation with other Member States, without recourse to the people? Could it be said that integration in foreign relations was part of the essential scope and objectives as already approved by the people in 1973? The Court was split 3:2, with Walsh, Henchy and Hederman JJ in the majority and Finlay CJ and Griffin J dissenting. Mr Justice Walsh gave a leading judgment for the majority, focussed less on the essential scope and objectives test and more on the “creatures of the Constitution” principle, holding that: 

“The Constitution confers upon the Government the whole executive power of the State. … Nevertheless, the powers must be exercised in subordination to the applicable provisions of the Constitution. It is not within the competence of the Government, or indeed of the Oireachtas [the Irish Parliament], to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution…” 

In other words, the executive power vested in the government is entrusted to it by the Constitution, and the government was not entitled to unilaterally decide to change the Constitution by fettering its executive power in external relations. As Hederman added succinctly: 

“The State’s organs cannot contract … in any way to fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers – not the disposers of them.”

Instead, any such changes need to be run through the usual process for constitutional amendment. As Walsh J said, what is required is “a recourse to the people ‘whose right it is’ in the words of Article 6 ‘. . . in final appeal, to decide all questions of national policy, according to the requirements of the common good.’ In the last analysis, it is the people themselves who are the guardians of the Constitution.” 

The Legacy 

This judgment is a landmark judgment in the sense that it is indispensable for understanding the principle of popular sovereignty as it is enshrined in the Irish Constitution. It is also indispensable for understanding Ireland’s relationship with the European Union. Crotty was politically revolutionary in the sense that it was certainly not anticipated by the European Council that European treaties would routinely become the subject of popular referendums in the Member States. Moreover, it created political turmoil when the Irish people failed to approve the Nice and Lisbon treaties in referendums, resulting in tensions in the European Council and delays to the process of European integration on both occasions. 

The legal legacy of Crotty is long, and not uncomplicated. When it came to ratification of the Treaty establishing the European Stability Mechanism – a treaty among the Members States of the European Union who were members of the Eurozone which was designed to protect the euro – the government proceeded with parliamentary ratification. The legislation was then challenged in the case of Pringle v Government of Ireland (2012) and, by a majority of 6:1, the Supreme Court found that the legislation was not unconstitutional. The majority did not seek to overturn the precedent in Crotty, but interpreted that case as being specific to external relations and the relinquishing of powers of government. The dissenting Judge found that there should have been a referendum and warned that an interpretation of Crotty that found otherwise was in danger of “emptying that great case of meaning”. Various academic commentators have considered whether the outcome and reasoning in Pringle are faithful to the judgment in Crotty or mark a subtle move away from that precedent.   

More recently still, the case of Costello v. Government of Ireland (2022) concerned the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union. Here, a majority of the Supreme Court found that ratification was unconstitutional unless certain changes were made to other legislation. Again, the Crotty case was invoked, with Dunne J, for example, surmising that in the light of Crotty and Pringle, “[w]hat one can say at this stage is that a proposed treaty or agreement that restrains or diminishes the exercise by the organs of the State of the powers conferred on them under the Constitution will require a referendum.” Costello has also been the subject of much discussion and mixed commentary, on various aspects of the judgment, and highlighting the strengths of the dissenting judgment.

The recipe of these disputes – the principle of popular sovereignty, the possible requirement of a controversial constitutional referendum, a multilateral treaty that cannot enter into force until ratified by all signatories, and usually some critical policy issues – means that the cases will always be politically charged and constitutionally significant. The Crotty case is the first example and foundation for all of these cases, and speaks to the unlikely power and legacy of one citizen who sought to ensure that the principles and values of his Constitution would be upheld. 

Maria Cahill is a Professor of Law at University College Cork, Ireland.

Suggested Citation: Maria Cahill, ‘The Crotty case and EU Treaty Referendums in Ireland’ IACL-AIDC Blog’, IACL-AIDC Blog (07 November 2023), https://blog-iacl-aidc.org/2023-posts/2023/11/7/the-crotty-case-and-eu-treaty-referendums-in-ireland