A Supreme Court judge said Ireland should not ratify the European Stability Mechanism Treaty without a referendum, arguing it would transfer powers and public money in a way incompatible with the Constitution. Justice Hardiman delivered that view in a dissenting judgment dated 19 October 2012.
The case was an appeal by Deputy Thomas Pringle against a High Court judgment and order made by Justice Laffoy. The constitutional question was whether the Government could ratify the ESM Treaty without authority from voters in a referendum. Other issues in Pringle’s proceedings were not before the Supreme Court for immediate determination, and some had been referred to the Court of Justice.
Justice Hardiman reasoned that the treaty committed Ireland to contribute up to €11.1454 billion to the ESM, an international financial institution established by participating euro area states. He focused on provisions requiring members to pay capital contributions and capital calls, including in circumstances where Ireland could not veto the decision. He also said the treaty prescribed procedures for decisions on financial assistance to euro area members.
In his view, these commitments shifted the reference point for decisions away from the common good of the Irish people and constrained the Government’s freedom to act. He considered the treaty’s obligations to be outside the scope of constitutional provisions protecting measures necessitated by EU membership. The parties agreed the ESM Treaty was not necessitated by EU membership, and the State did not dispute that the Government and Oireachtas were subject to judicial control under the principles in Crotty v An Taoiseach.
Justice Hardiman also raised questions about how treaty obligations would fit with constitutional rules on public expenditure, ministerial accountability and the Central Fund. He expressly said it was unnecessary to resolve those questions to decide the case.
He proposed that the Court hold the treaty incompatible with the Constitution unless a referendum amended the Constitution to permit ratification. This was Justice Hardiman’s proposed order, not the disposition of the appeal by the Supreme Court as a whole. The provided extract ends with his proposed order and does not set out the Court’s operative order.