III - Changes to Constitutional Law

Nature national instruments       
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?

Euro-crisis law has primarily been implemented through ordinary legislation (ex the Fiscal Responsibility Act 2012). A single constitutional amendment was employed to ensure the compatibility of the Treaty on Stability Coordination and Growth (TSCG) with the Constitution.

Constitutional amendment     
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?

There has been a single constitutional amendment to implement the TSGC. It was successfully adopted through a referendum in May of 2012 (see section IX below).[1]

Constitutional context
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?

National constitutional law did not already contain any relevant elements with the possible exception of the Comptroller and Auditor General (CAG) that may constitute a ‘supreme audit institution’ for the purposes of Regulation 473/2013/EU.

Purpose constitutional amendment   
What is the purpose of the constitutional amendment and what is its position in the constitution?

The 30th amendment to the constitution allowing in relation that resulted in the new Article 29.10 of the Irish constitution firstly allows the state to ratify the Fiscal Treaty and secondly provides any piece of legislation necessitated by that Treaty with immunity from constitutional challenge (‘the necessitated clause’).

Relationship with EU law          
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?

The only constitutional amendment adopted in relation to the Euro Crisis is the 30th amendment permitting the ratification of the TSCG thereby giving it and any legislation adopted under it immunity from constitutional challenge. This construction mirrors that adopted to accommodate Union law in the Irish constitution.[2]

Organic law       
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?

There are no organic laws or types of legislation other than ordinary acts of the Oireachtas and secondary or delegated legislation (primarily Ministerial orders known as statutory instruments).

Constitutional amendment and ordinary law 
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?

The balanced budget rule contained in Article 3(2) TSGC is implemented in Ireland through the Fiscal Responsibility Act 2012 and in particular its sections 3 and 4.[3] It is an ordinary piece of legislation and can be repealed or amended by the Oireachtas (Parliament) at any time according to the ordinary legislative process. However it will enjoy immunity from constitutional challenge per the second clause of Article 29.10 of the constitution.[4]

Perception source of legal change     
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?

Sinn Féin and at least one independent TD, Thomas Pringle, believed that the ESM Treaty should have been adopted through constitutional amendment. Mr Pringle challenged the ESM Treaty before the Courts and arguing that it ceded sovereignty to an international institution and thus required a constitutional amendment per Crotty v An Taoiseach.[5] This view was treated sceptically by commentators[6] and ultimately rejected by the Supreme Court (see answer to question VIII.4 below). Instead the ESM Treaty was adopted by an ordinary piece of legislation, the ESM Act 2012. There has been no significant public discussion regarding other aspects of Euro crisis law.

What other information is relevant with regard to Ireland and to changes to national (constitutional) law?

There have been no other changes to national (constitutional) law originating in changes at a supranational level to the Euro crisis. The financial crisis in Ireland is however a major collective national shock that has triggered significant economic, political and ultimately constitutional reform. In response to the programme for financial assistance significant changes have been introduced or are planned on being introduced in areas of economic (particularly professional) regulation and labour relations. Furthermore in its programme for government, the Fine Gael-Labour Government promised far reaching reform of the political system and established a constitutional convention to look at issues such as the voting system. A referendum on the abolition of the Senead (upper house) was narrowly defeated in October 2013.[7]

[1]                As mentioned above there have been other constitutional referendums, however these are not directly related to the Euro Crisis.

[2]               See generally art 29.4 of Bunreacht na hÉireann (the Irish constitution).

[3]               For a detailed discussion on the parliamentary debates of the Fiscal Responsibility Act 2012 see the answer to question IX.3 below.

[4]               See comments by Minister of State at the Department of Foreign Affairs and Trade, Joe Costello TD Seanad Debates, 24 April 2012, Vol 214 No 15, 960. 

[5]               Crotty v An Taoiseach [1987] IESC 4 [1987] IR 713.

[6]               Darren O’Donovan, ‘That Other Treaty: Ratifying the European Stability Mechanism Treaty’ (Human Rights in Ireland, 22 May 2012)  <> accessed 11 June 2013 and Barrett, ‘The Treaty Amendment on the European Stability Mechanism: Does It Require a Referendum in Ireland?’ (n 98).

[7]               ‘Undecided voters turn into No voters’ Sunday Business Post (Dublin, 6 October 2013).