 Thank you very much Paul for that very kind introduction. Before I begin the speech they're just a number of people that I would like to thank I would like to thank Paul and the Bar Council for hosting this seminar today I'd like to pay particular tribute to the IIA and to its chairman Wyg的位ly, particularly to the IIA and its chairman Brendan Hulligan and director Dario Carrig Mae'r ffordd o'r iau newydd yw'r cyffredin iau sydd wedi fyfynu'r Gwyrdiannau sydd yn dod i'r dyn, ac mae'n gweithio gyda'r ffordd ar y Fywr Ysafodol Aelodau. Rwy'n rhaid i gyd-gwch chi'n gweithio i Gaven Barathe, i'r gweithio'r ffordd i gael ysgrifennu gwyrddol, ac yn ymddir ychydig i'r ffordd o'r ffordd i'r ffordd i gael yw'r gweithio'r mwy. hon i gael i gael i'w gefnidol. Fe wnaeth hynny i gael i'r gweithio dystiol o'r gweithio pen jounig ar gyfer yn unig gan gaelio gyda'r gweithio unrhy Arguon a oedd gennym o gweithio cynsig wneud rhai gwybodol yn ymgyrch. A'r gweithio eich gwasanaeth ar gyfer y gweithio mewn cymryd yn derbyn o'r gweithio gan gweithio ar gyfer gweithio. sgwrs. Rwy'n golygu, y Regulio 4007 o'r 2010, yn cychwyn gyda'r mecanol sydd gyda'r Llywodraeth hwnnw, ac yn ddiddordeb yn ddiddordeb, yn ddiddordeb sydd cyfnodol, yn cael ei gyfnodol i'r ymgymell ar y llwylo i ddifŷnol, a'u ddiddordeb yn ei gwybod a'u ddifŷnol i'r ddifyddiaeth ...lyniogol ystod dillud. Ond y gallbwynau ond hynny sy'n hynny... ...ethefn i ddim yn ffaisi ameryddol, ond mae'n ddweud yn El Jiell i hynny... ...fyneth ffordd o hyd yn ymddangosol erioed i Gael... ...er rywun i allan o'r ardweithio ar y llwr ymddangosol... ...y gallu hynny bydd yma yn ymddangosol... ...y oedd ydy'r tyfnod bryd ymddangosol... ...eith y gallu ei maghlu cyffrediantr hyn yn amlunt. Eurol a'r syniad dwi'n gweithio'r cyfanol gyda'r cordid yma ydy'r mecanDa'r gweithio'r gweithio ar unrhyw ysgol Rath Clif yn y prif, ar y llawr a'r gweithio'r ddoedd o'r bwysig yn ymddi'r union i Eurol. Yn ymddir yw'r EFSM, mae'r cwm yn ddwy'r ffawr syniad yw'r ddwy'r gweithio'r ffawr syniadau gweithio'r rhaeddiad i'r Minister i ddweud yn dweud o'r cymdeinigol ar gyfer yng Nghymru ar y ddylaid yn ymwyllgor i gael y cyfnod Ysgolwyr, unrhyw o'r llwyll iawn i'r cyfnodau fyddion gyda'i gyffredinol mae'n gwneud o'r grwp yng Nghymru, ac mae'n gweithio sy'n ei ffrwng ar gyfer ystafellol o'r ranklaid. Mae'r cyfnodau ydyn nhw wedi'i gael y cyfnodau iddyn nhw yng Nghymru a yn ystod o'r ddau'r cyfathedau yn ystod o'r ddau'r cyfathedau a'r ddau'r cyfathedau yn ystod o'r ddau union. Mae'n ddifig o'r ddweud y gallu'n ddau'r argymau ymlaen o'r ddau'r llawau'n cynnig o'r llawau. As Gavin forsily pointed out, Article 122 permits the granting of financial support where a country experiences exceptional difficulties due to circumstances beyond its control, and it is difficult to see or consider the present difficulties being faced by Ireland, Portugal and Greece as anything other than the type of difficulties. That were thankfully provided for in Article 122, and certainly given the approach to interpretation of the treaty in European instruments, it would be a new departure to say that Article 122 could not be interpreted so as to ground and provide the basis for the EFSM, which is the legal basis for Regulation 407 2010. Separately from that, the states are entitled to exercise all their sovereign powers as states unless there is something in the treaty which takes away that power. And I don't believe there is anything in Article 125 which takes away the power of the countries who are members of the Eurogroup, the 16 countries members of the Eurogroup as they were then in 2010, to decide that they will provide financial guarantees to another entity to enable it to make loans on commercial terms to other member states. The necessity for the amendment has come about because of domestic difficulties in Germany and the fear that if there was not an explicit treaty provision authorising this support that the Bundesverfassungsgericht might declare the present procedures of the present facilities illegal. Of course that would be the view of a particular domestic court of a particular member state and would not be the view of the entity and organ that has the sole and ultimate responsibility for the interpretation of the treaty, namely the ECJ. But whether or which we are, where we are in relation to the matter and now an amendment as Gavin has explained is going to be introduced to put an explicit treaty basis to authorise support in the circumstances described in the draft treaty amendment to article 136 which Gavin identified. And those powers will be conferred if anything they can be viewed as a restriction of the existing powers because they will only be allowed to provide support where this is indispensable to safeguard the stability of the Euro and where it is subject to strict conditionality. The commission as Gavin has said has expressed the view that this does not involve any increase in competences of the union, that this will enable member states outside of the treaty structures to do what is the normal sovereign right of a member state, namely to provide financial support or any other financial arrangement with any other country. And it is difficult to see any credible argument to the country. This is a recognition of a power that I think is clearly enjoyed by the member states under the existing treaty and it is an affirmation of that power, a removal of any doubt in relation to it. But the financial support unlike that provided under article 122 will not be provided by the union but will be provided by the member states in their sovereign capacity. So when you come to look at article 486 and the power that is provided by article 486 to amend the treaty as Gavin has pointed out that can only be exercised where there is no increase in competence being conferred on the union. The fact that the member states take the view expressed in the council decision that it can be so exercised, the fact that the legal basis is conditional on there being no increase in competence is obviously a further legal affirmation that there is no increase in competence. And indeed it would be for the ECJ to express a country view as the garden of the treaties. But first principles make it clear that what has been done is an affirmation of the entitlement of member states in their own right as sovereign states and not an increase in the competences of the union. The next matter that I would like to address is the Crotty decision and just to add a few thoughts to those expressed by Gavin. First it is a misunderstanding of Crotty to believe that every amendment of the union requires a constitutional amendment. Crotty did not so hold. Indeed it held to the country. And the provisions of the SEA that were incorporated into domestic law by the 1986 act involved amendments to what was then the European economic community. And those amendments were held to be within the essential scope and objectives of the treaty and therefore something that the license granted by the people in 1972 and enshrined in article 29 for three of the constitution as it then was entitled the state to exceed to this new treaty and to ratify it and to have it incorporated as part of the existing economic community. That much is absolutely clear from Crotty. And it didn't matter that these new provisions were not necessitated by existing obligations. That will inevitably be the case where you are looking at amendments to the treaty. They cannot be necessitated by the existing treaty if they are indeed amendments. The fact that they are not necessitated doesn't mean that Ireland cannot ratify them without a constitutional amendment. You then go on and look at the second issue whether it is within the essential scope and objectives of the treaty as it stands at the particular time and you make a judgement in relation to that. And the license given by Crotty is quite broad because back in 1986 there was an increase or a more explicit delineation of competences of the European economic community as it then was and it was said that the provisions in the economic community that existed were really suggested that these developments might take place or gave some indication that the community as a progressive institution was going to move in those areas particularly when you considered articles two and three of the community as it then stood. It also recognised the entitlement of the government to agree a movement from unanimous voting in council to qualified majority voting in council. So that even though on one view that was a diminution of Irish sovereignty because it could no longer by its vote prevent a measure being passed in council, the court took the sensible view of recognising that it also had a positive aspect because of course the fact that you can't veto something has the corollary that another member state can't veto something that you want so that there can be advantages to the country. But in any event that movement from majority to qualified voting that was perhaps less clear in the context of the 1978 treaty as it then was that did not require a constitutional amendment. Neither did the creation of a new court attached to the court of justice require a constitutional amendment. So Crotty is clear in that and every proposal for an amendment of the treaty therefore requires a careful analysis to see whether it does require a constitutional amendment. The second issue dealt with by Crotty was not something that involved any amendment of the treaty, the European Economic Community at all and sometimes site is lost of that. It dealt with title three of the SEA which provided for closer cooperation in the field of foreign policy and required the member states who had ratified that treaty to co-operate more closely in the area of foreign policy to consult one another to agree common position. To agree principles by which they would conduct foreign policy. The Supreme Court split 3-2 on whether that required a constitutional amendment. The majority held that it did because it involved a restriction of the government's right under the constitution to decide on foreign policy. A right that is subject to certain limitations under article 29.5 because it has certain decisions in the foreign policy sphere require approval by the doile. But it is a right that is fundamentally given to the government under article 29. And the Supreme Court said something that is actually unsurprising. It said this is the constitutional architecture. This is the area of sovereignty of the government. This is what the constitution says is the government's role. And if the government enters into this treaty it is abdicated some of that constitutional role. It has fettered its area of discretion in foreign policy. And that alteration of the constitutional status given to the government in the area of foreign policy is something which requires a constitutional amendment. Because the constitution at the moment sets out what that power is, this treaty would restrict that power and it would have very serious and significant consequences. Now the division was really in relation to whether the consequences of entering the treaty were as serious or serious or not serious. The minority took the view that is really only involved a duty to talk and consultant that any government conducting foreign policy will talk from time to time and perhaps make promises to other countries. That's inherent in foreign policy. Mr Justice Walts and Mr Justice Henshey in particular thought it went much further. That it was an imposition of a very significant restriction on the government because it did require them to do certain things and undertaken good faith to do those things, to cooperate, to consult, to agree positions and that was an unacceptable restriction. So it's very important to bear in mind that for all the criticism of Crotty most people who criticise it or indeed most people who wish to ignore it don't actually analyse what it says and a careful analysis, an analysis that it is legitimate to disagree with in the context of what the implications were of Title III. But nevertheless an analysis in terms of principles that is perhaps harder to disagree with because it made a simple point that every country will recognise that to cede sovereignty is a very serious matter and therefore when you engage in a treaty that involves a session of sovereignty you must look closely at that and see whether there is a licence to do that and the licence can only come from the constitution or from the approval by the people if it is not already provided for in the constitution and that means that when there is any amendment proposed to a treaty it is necessary on the current law to apply the Crotty principles and one of the difficulties I think we suffer from not just in this country but I think it's also a European phenomenon is that sometimes people when they want a result are inclined to let that influence their interpretation of law and indeed a notable feature of the development of the European Act P is the sometimes doubtful basis, legal basis for some of the proposals that are put forward in a European context and it is necessary to carefully look at the legal basis for those proposals similarly every time there is an issue in relation to an amendment of the treaties people put forward views as to whether an amendment is required without necessarily setting out the analysis to justify that view Gavin Barrett of course is a very honourable exception in relation to that but there are some amendments in respect of which there is no doubt that a constitutional amendment is required there are others perhaps where there is somewhat more doubt but one thing is clear that there is a duty to examine it in the context of Crotty but also the importance to recognize that Crotty is not the vice grip that some people suggest it is that Crotty provides a structure for making a decision and a structure which allows considerable leeway in the context of a constitutional amendment because remember the union that we are now dealing with founded on Lisbon is very significantly different from the community that was founded on the original treaty of Rome and changes to that community which now may look not very significant but in 86 represented a very significant departure from what was agreed in 58 were sanctioned by the Supreme Court as being within the original licence when you look at the areas of our lives both personally and the lives of the member states to use that phrase that are now governed by European Union law the extent of majority voting the spheres of influence of the European Union the integration at a political level the integration at an economic and monetary level then it is clear that in that new context there is far greater scope for amendment of the treaties that will not necessitate the holding of a referendum the next point I want to deal with is just to understand how Crotty applies there were some who suggested that in the context of Lisbon a constitutional amendment was not required and nowhere did one see necessarily the analysis to support that contention other than general assertion that Crotty did not require an amendment in each case but it's important to highlight the distinctions between Lisbon and what we're talking about now in the context of the proposed amendment to perhaps amendments in future Lisbon of course introduced and made part of European law the charter of fundamental rights and while that applied within the scope of the area of European law and had to be obeyed and was addressed to the institutions it was a very significant alteration in terms of the protection of fundamental rights that hitherto had been part of soft law but was now an integral part of the treaties and the same status of the treaties its potential for effect on the rights enshrined by the constitution was obvious particularly when taken in a context that the rights enshrined in the charter where they coincide with the rights in the European Convention of Human Rights have to be interpreted consistently with that convention and of course that convention has only been introduced in Irish law at a sub-constitutional level in circumstances where the union is now going to exceed to the European Convention of Human Rights which is its own consequences in terms of interpretation of the charter and in circumstances where although the charter is addressed to the community institutions it has the potential depending on how it's interpreted to effect rights of individuals in individual disputes Paul Craig in his book on the Treaty of Lisbon identified a possible interpretation of the charter which would impact on litigation between individuals and not just litigation between individuals in the state as he made clear and as we all know treaty articles have vertical and horizontal effect and horizontal effect means they can be prayed in aid in disputes between private parties article 151 of the treaty of the TFEU provides for equal pay for men and women article 23 of the charter provides for a more general equality in all spheres between men and women and he said if somebody brings an action against another individual that ends up in the European Court the European Court is a European institution it is one of the addresses of the charter and the question will arise whether the European Court must then apply the broader concept of equality enshrined in the charter to that dispute because it is applying European law there are all sorts of complex issues about the potential effect of the charter which were significantly ignored in any of the analysis of whether a treaty amendment was required Mr Justice Keane in delivering the Brian Walsh lecture here two months ago said it was absolutely clear in the context of the charter and for that reason alone a constitutional amendment was required secondly nobody seemed to address the very fundamental issue of what was the protection given by the existing constitution to European measures because under article 29 for 10 of the existing constitution measures that are necessitated by membership of the European community and the union founded in Maastricht were protected from constitutional invalidation but of course we now have a new union article 50 of the TEU gives for the first time a legal personality to the union secondly article 1 of the TEU provides that the new union is different from the old union it is now a union founded on the TEU and the TFEU and shall replace and succeed the earlier community and how any body could conceive that one could take any risk with the essential protection of European measures from constitutional review in the context of a new treaty when article 29 for 10 did not apply to that treaty but applied to the earlier community which was gone and an earlier union which was gone and of course the consequences of not having that constitution protection as Mr. Justice Walsh pointed out in Cotty would be horrific because at an international level Ireland would be required to be obliged in order to fulfil commitments that it couldn't in fact fulfil because the constitution prevented it doing so a third matter that seems to have been overlooked is that article 12 of the TEU and article 3 of the protocol on national parliaments give a new role to the parliaments in the various member states in Ireland the role is given in a bicameral legislature to both the Doyle and the Shannon these are rights to raise issues and objections in relation to community measures that infringe the principle of subsidiarity an entitlement to send back to the council and the commission any measures that they say infringe that principle which must then be reviewed and the consequence might be that those measures are never enacted our constitution provides that the government as I said has sole control in the area of foreign policy subject to very limited control by the Doyle now you have the Doyle being given a role in foreign policy that it never had and the Shannon where is that in the constitution how could those powers be consistent with the constitution so what you have to do is you have to analyse each measure and decide whether it does require a constitutional amendment but the important message is there is nothing in crotty which says that every measure requires every amendment requires a constitutional amendment the next matter I want to look at briefly is where we are now in a European context we have spoken about seeding sovereignty but concepts of sovereignty evolve and Ireland and other member states have seen in the last few years how notions of national sovereignty must be put in perspective that the extent to which member states in particularly small member states enjoy sovereignty is limited by the realities and complexities of a modern global economy which global finance influencing matters in member states so sometimes people get concerned that amendments to the treaty have some terrible consequences in terms of sovereignty it is very important to say to analyse sovereignty in the correct way to recognise the limitations that already exist on the sovereignty of the member states and in fact the support for sovereignty which being a member of the union and in the context of the Lisbon treaty has provided to Ireland in the present context I don't think anybody would gain say that Ireland could not have survived the present crisis without the support of the union so this is something that is important to understand and we still perhaps have a tendency in this country to want to be fully part of Europe but in a sense to sort of hold something back and reserve that in case there's something we don't like we'll be able to put up our hands in a sense we're beyond that in the dynamic of European integration and it is right that we should be so because Europe on any version has been unequivocally beneficial for this country one of the disappointing matters about the last constitution referendum was this concept and relativisation of law that I've already spoken about where people opposing the treaty put up the spectre of legal consequences of approval of the treaty that were wrong in law had no basis in law and yet are used as a means of in fact interfering with people's informed and reasoned choice of whether one should or should not approve amendment and as Gavin Barrett said we should not believe that the default situation is a referendum because referenda particularly subject to the legal constraints in this jurisdiction do not always yield the most democratic result particularly where you have uninformed and completely wrong assertions with regard to the consequences of treaty amendments and the difficulty in explaining these concepts in a referendum context also it was interesting to note that in the last occasion there were many issues as to what were the consequences of Ireland's rejection in the first referendum Bruno DeWitt in an article entitled consequences of the ratification crisis posited a number of arguments that were in currency at the time and again these arguments had no basis in law but it is a feature of modern discourse that where as I said a desired result is sought or ejected that people clothe arguments with a legal basis it was suggested there was a basis for going ahead with the Lisbon treaty on the basis of some form of enhanced cooperation leaving outside the states that were not part of it that had no legal basis there was a suggestion that Ireland could be expelled from the existing union because it had not ratified that had no legal basis in fact there wasn't even a provision for voluntary withdrawal from the European Union there is now in the treaty of Lisbon but there wasn't then there was a suggestion that somehow the treaty of Lisbon amendments could take effect as soft law rather like the charter had been up till then again that was wrong and it is very important in our discourse and analysis on these vital issues that we properly analyse those issues and we come to a reasoned conclusion and a reasoned approach in relation to them because the issues at stake are so vital for this country that to lose them in the confusion of inadequate analysis, inadequate understanding is a cost potentially far more severe to this country is a far greater potential diminution of our sovereignty and of our ability to ensure that Ireland prospers and continues to reap the benefits of European Union. I leave you with the words of Tony Yutt the great European intellectual who spoke in his book Europe a Grand Illusion published in 1996 he spoke about the fact that Europe had achieved something quite remarkable because it started as a legal construct and now it was something more than that it was an ideal and he said this was exemplified by the fact that in the early 1990s when you had 15 members of the Union that people spoke about European country spoke about joining Europe Europe was something distinct from the land mass of Europe it represented an ideal a belief in how the future could be achieved and could be maintained for mutual benefit that is an ideal that is a say yielded very significant benefits to Ireland and all you have to do is reflect on the fact that in 1945 Europe was in devastation in 2011 despite the crisis you have a Europe governed by the rule of law with all the enormous rights and benefits European citizens have when circumstances such as existed in the 40s are now unthinkable that is an enormous achievement in the space of little over 50 years and in one sense is in fact the high point of world civilisation Homo sapiens has inhabited the earth for 200,000 years it's only in the last 50 years that the nations of Europe and indeed anywhere in the world have been able to come together and construct a legal structure that is yielded benefits in terms of protections for citizens rights protections for countries that were undreamt of 50 years ago even undreamt of 30 years ago and for all the criticisms of lawyers and legal difficulties in the European context it is worth remembering that the European ideal and the European structure has was really given an impetus and has survived and has evolved as a dynamic structure through the ground breaking decisions of the European court in the early 1960s which identified that organic ability to grow and the protection and enshrining of the rule of law the provision of ways in which the rule of law could be protected that was a legal construct and it is important to remember that Europe is grounded in the rule of law I say that in a present context for two other reasons the present tendency exemplified by the Deauville declaration from member states of Europe to go outside the European structures the legal structures and decide things outside has to be seriously deprecated that is not part of the European ideal or the European structure secondly I think it is important in the present in the circumstances of the present crisis to remember this we are part of a European ideal we are constantly reminded of the European Union spirit of the need to cooperate and in the present circumstances it is completely wrong to place any pressure on this country to cede any rights in the area of taxation those that are recognized in the treaty has been the sovereign rights of this country and to do so as a time of economic crisis Europe is built on the rule of law we're entitled to assert those rights and they should not be linked with any question of reduction of interest rates for Ireland either those interest rates are justifiable or they're not if they're not justifiable it is wholly improper to link them with any session of sovereignty by informal pressure if they are and they are not correct if they are right then of course the issue doesn't arise so while I am a firm believer in the European ideal I think it is important to remember that the European ideal is a construct and an evolution and an outgrowth of the rule of law and if it is to continue to prosper we must respect the rule of law both in the context of constitutional amendments are the necessity for them and the assessment of the necessity for them in this jurisdiction and in the context of the development of Europe and obeying the rule of law to achieve that development