 Thanks very much indeed and thanks very much to the Institute and to all involved for the very kind invitation to speak a few words Here today. I'm always tempted after Peter Sutherland speaks to Simply say I agree and have nothing further to add An approach that was beloved of a now long retired Supreme Court judge who was beloved for exactly that reason by every law student I knew But if I do that they certainly won't invite me back again So I suppose I'd better say something and I read with great interest your paper and agreed with with Nearly everything you had to say in it Peter one particular point that your mention of Refusals of treaties often on the basis of arguments like neutrality taxation or moral issues that have absolutely no substance Rang very true for me. I do remember Sitting down in April I think 2008 which was around the time of the first Lisbon treaty and writing down the arguments that were being considered and the Striking feature about most of them was that they had absolutely nothing to do with the treaty and Farmers were arguing about the stance of the government in the WTO talks and unions were talking about reversing a particularly controversial decision Relating to collective bargaining and hospital committees were trying to stop closures of hospitals the usual arguments about neutrality It came out a completely fake argument about corporate taxation somehow took root and then the argument about a commission Membership that actually had already been decided in the knees treaty without anyone seeming to get to to worked up about it the arguments Over the fiscal treaty struck me as being much more closely related To the substance of the treaty and yet I agree that they too frequently diverged From reality and completely and utterly factually Incorrect arguments about the economic argument of that treaty which in reality was very limited We're constantly made and for all for me all of this involves a kind of call for Realism in relation to things and I think we we need to be realistic not just about our membership of the European Union But about the advantages and disadvantages of the legal mechanism of a referendum as a decision-making tool And of course referendums do have advantages that the big advantage of a referendum is its finality And there's no arguing with the results of when it comes to a really big decision like entry into the Union or matters like that, there's no You know, they are a useful tool, but the disadvantages of them are that the arguments deployed in them are frequently ill-informed They're plagued by propagandistic measures like referring to a treaty as the austerity treaty whether it is or not And they can be affected by attitudes to the government and and furthermore There is the issue that they're also affected by the extent of the individuals knowledge about the issue in question in other words people who don't know and we have research confirming this really do tend to vote no and You know participation rates also can vary very wildly as well. So there are advantages. There are disadvantages I know I stress the disadvantages there but There are advantages. What I would say is that we need to avoid deifying referendums at the end of the day and I think that was a danger and perhaps that Perhaps wasn't The Supreme Court particularly in McKenna number two might not have been alert enough to I think it was Bismarck who said that those who love sausages and respect the law should never watch either being made and You know, perhaps the Supreme Court decision in McKenna number two Seemed to be made somewhat In blessed ignorance of the reality that if you exclude government finance from referendums Well, then private finance will flood in to fill the vacuum and I'm not sure one perhaps point of descent I'm not absolutely sure about the conclusion that we could reasonably and have avoided Referendums on the basis of the essential scope or objectives test in in karate I've been asked that question and I've asked myself that question quite frequently. There's a good discussion of it in Kelly's and Irish and Constitution in which the authors and now judge Hogan and and Jerry White conclude that maybe the referendum on the nice treaty was avoidable under the karate criteria But they're less sure about the others For example, the Lisbon treaty involved setting up a new European Union and a new legally speaking at least so I'm not sure if that could have been done without Without a referendum authorization. I suppose the whole point for me about the karate is sketch essential scopes or objectives test Is ultimately that it is so ambiguous and it's effectively as wide as the gate So we don't know how wide our narrow the essential scope of object our objectives of particular Treaties are and although like Peter Sutherland I'd be more inclined to give the concept a wide rather than a narrow interpretation because after all if you vote for a kitten I suppose you shouldn't be too surprised to wake up in the morning and find that it has grown into a cat and But the only way and you get to find out About such matters is when the courts get to pronounce on it on the essential scope or objectives of a treaty And of course the courts never actually get to pronounce on that because no attorney general and no government would ever risk getting it wrong In other words risk mere parliamentary Ratification of a treaty that might go beyond the essential scope or objectives of existing treaties An attorney general and who advises in favor of a referendum and Will never be found out as having been wrong as having made a mistake and attorney general who advises a referendum is not required It might be and in the results I think that the karate test that's really applied is not does this treaty go beyond the essential scope or objectives of existing Treaties the real test that's been applied is is there any reasonable possibility at all that this treaty might go beyond the essential scope or Objectives of existing treaties and that test is always met and therefore we almost always get Referentums how do we get out of this danger of unnecessary referentums? Well, I think as was mentioned by Peter Alan Shatter's suggestion Which I think might have been modeled on an equivalent procedure that exists in European Union law Preliminary references to the Supreme Court on the legality of Ireland's adherence Or ratification of a treaty would eliminate any danger of superfluous referentums Of course to get that preliminary reference you'd actually require a referendum in the first place and would an amendment like that actually pass Answer to that. I don't know and there's a very large body of opinion that there is no such thing as a superfluous Referendum, so maybe it wouldn't pass. Maybe it would I don't know. I think it would be a good idea to have it personally myself, though and going back over the Substance of what Peter had to say I think Ireland has had for a long time a worrying triumvirate of Decisions the the Crotty decision the McKenna number two decision and the Coughlin decision I think it's fair enough to say that all decisions were controversial enough when made probably in descending orders of magnitude But particularly in legal circles, I think I find that is increasingly less the case and the Crotty case was significant Of course for a number of reasons a number of reasons in relation to its decision in relation to standing and because it elaborated the scope It's a necessitated clause in article 29 for and establishing essentially as irrelevance in cases of treaty amendments Because it elaborated the scope of the constitutional authorization to join European Organizations with Chief Justice Finley's famous for formulation that interpreting that as only allowing access to existing treaties would be too narrow existing Interpreting as allowing access to to any further treaty amendments would be would be interpreting it too widely and coming up with the essential scope Our objectives test as well And but the real reason why Crotty of course was controversial was its approach and to sovereignty And interpreting this is simply being the right to say yes or no to matters And the problem is as Peter Sutherland has indicated it's impossible I think to believe that even such a rigorous test As seems to have been established in Crotty was actually violated by title three of the single that European Act And it's full of what some would be relatively called weasel words And in other words diplomatically diplomatic formulations designed to ensure that no real obligation to do anything at all exists And so it's in other words It's a wish list of rubber formulations Mandating little more than fireside chats about foreign policy and so I think it's fair to say That the Crotty test really was a hair trigger approach and to sovereignty and if the essential scope or objective Test was exceeded then it was likely that the sovereignty test was going to be impossible To escape that's especially since the area of foreign policy is Interpreted on at times is being so wide and of course It's important to remember that the Crotty test doesn't just apply in the area of foreign policy and it talks about Decision holders giving away their power if you like being custodians of the power to decide but but not being entitled to hand them over But that obligation applies to the legislature and it applies to the executive and as well Now of course the immediate damage of the Crotty case in this regard was was done away with by the referendum That's that passed the single European Act afterwards or approved it and then successive referendums If you like approving successive European treaties, but it remains a very real and consideration the Crotty case It was real it's real in relation to treaties which are not European treaties and of course that was the case with the fiscal treaty and of course the big point about the fiscal treaty Is that it didn't need to be ratified by every member state and it's likely In my view in the future that recourse may be had to treaties of this kind again in the future because European Union treaties Need to be ratified by everyone and it's eminently possible that in order to escape If you like that requirement of unanimity and that there will be future treaties there will be treaties in the future in other words, which the The validity of which will rest squarely and on the Crotty sovereignty test at the end of the day So it's a very relevant test indeed interestingly in the subsequent mid-Ymsey test, which was a challenge to the Challenge to the anglo-irish agreement which should have been condemned if Crotty pure Crotty was applied And the Supreme Court ran a mile from it and distinguished it in a very unconvincing fashion as well And I find it interestingly as well that in the latest judgment the Pringle case the Supreme Court Distinguished it as well again very very unconvincingly. I find the interpretation of Mr. Justice Hardiman and his interpretation if you like of the In that regard of the Crotty test a more convincing one, although I prefer the outcome of the majority's decision In that particular particular case. It's just I don't believe the distinction They drove it they drew in the case between the ESM treaty and Title three of the SEA The McKenna number two case what I suppose I should say Basically in relation to the McKenna number two case and the Coughlin case is that I agree and really happen to a great deal Further to add in relation to them I suppose my essential concern would differ somewhat from Peter Sutherland's in relation to the McKenna case This is the one relating to expenditure and in referendums and I suppose I share the difficulty Fail to see where the Supreme Court got its justification for this very radical definition of democracy that it came up with this was very real and judicial Legislation and I think of a rather unwise kind But where I would differ from Peter Sutherland a little bit or perhaps I wouldn't differ It's just that he didn't mention this and is that my view of the McKenna case is that it has effectively privatized Referendum financing because the government which is after all democratically elected is Prohibited from spending any money in a referendum even though it has a very real interest in the result Whereas private parties and we've seen this happen in successive referendums in Ireland can come in and spend vast quantities of money in the same Referendum I find that deeply worrying So that's the the the McKenna case and then and the Coughlin case The interesting thing for me about the Coughlin case was that the Coughlin case involved an eminently reasonable rule and attempt to balance Equality and and Representativity and at the end of the day this was condemned by the Supreme Court again I think very on on wisely. I can't put the matter any better I think than mr. Justice Barrington did in the Coughlin case when he said that the people are the ultimate sovereign But there is no constitutional device that will ensure that their ultimate decision will be infallible or even that it will be prudent Just or wise the most we can hope for in relation to any sovereign including the sovereign people is that before making its decision It will be well informed and well advised in this context to play down or neutralize the role of political leaders in favor of committed amateurs Would be to say the least on wise and so I think that would be the main concern that I would have About those So a fairly hefty step if you like away from majoritarian parliamentary democracy and into the area of direct democracy which could have absolutely You know unthinkable consequences in the long term for this for this country. We'll have to wait and see now last word I know I've probably overgone the amount of time That's that's a lot of to me but a very quick word about the recent decisions Pringle and McChrystal and Daugherty I think the most amazing thing about the Pringle case and the McChrystal case for me Is that the state actually made no argument in either of these two cases that crotty a crotty in relation to sovereignty and B McKenna had actually been wrongly decided and The McChrystal case in particular was more or less straightforward application I've no query about the application of the Supreme Court as a McKenna number two judgment in the McChrystal case They were right the question wasn't whether and that test If you like if the government's behavior and could have been approved under that particular test I don't think it could the question was whether that test was the appropriate one in the first place and that argument Unfortunately was never even made before the Supreme Court and the result of that is worth stuck with it In relation to the Pringle case I found that an interesting case again the crotty case was questioned by neither side In the ruling and I think that's that's very interesting But interestingly the majority and the minority the one man majority consisting or the one judge majority Consisting of judge Hardiman took very different views of what the sovereignty test and actually established and I Think mr. Justice Hardiman took a more traditional view of what it is established But a mr. Justice Clark instead focused on the breadth of the decision In other words that I beg your pardon the breadth of title three of the single European Act and that that was the objectionable feature to it in other words that the European single the European stability mechanism treaty quite narrowly focused and I know I am simplifying here to a certain extent, but that the Title three of the single European Act was much broader Measure affecting foreign policy as a whole and that was the distinction between them So for mr. Justice Clark and if you're reading the judgments the judgments of Justice O'Donnell and Mr Justice Clark are by far the most interesting ones there and the new test established by mr. Justice Clark at page 28 So there you don't even have to read the whole thing and the new test was to distinguish between an exercise Insovereignty on the one hand, which he felt that the ESM treaty was and whether there was and he felt that there had been this in in relation to the single European Act title three such a Significant narrowing of future policy options that it can properly be said that there has been a transfer of Transfer or pooling of sovereignty my problem with this particular test. I actually think it's much wiser judgment than the initial judgments in the in the karate test But the problem is it is also a very difficult test to apply and at the end of the day Where is the borderline between the two of these? So I think if you like the uncertainty that we have been left with In relation to such matters and as a result of the karate case is going to survive And I think we are going to see plenty more referendums. Thank you very much indeed