Knowing the reception that this amendment is going to get I shall try to delay the House as little as possible. I think the issue is an extremely important one and that the arguments are valid. They are less valid to this draft of the amendment because it is unduly wide. That is my problem with it, but nevertheless it is necessary that the arguments be made and I propose to make them as clearly as I can in order to explain why I wanted to introduce this amendment and why I think it is going to be necessary.
As I stated on Committee Stage, one of the great problems with this Amendment of the Constitution Bill is that it treats the three Treaties setting up the Economic Communities as the sole basis for development in the Communities, as though the Treaties were largely unimplemented. The reality is that most of the major obligations under these Treaties have already been carried out. There is a customs union and there is a common agricultural policy. Substantial advances have been made in relation to free movement of goods, free movement of persons, and so on. There are only some aspects, in relation to such matters as transport policy and right of establishment of a liberal profession, that remain to be implemented. The major dynamic activity and the major force of the Community at the moment is on what is called the borderline of these Treaties. They have gone on to consider matters such as the development of economic and monetary union, the development of an industrial policy, for which there is no strict legal basis, the development towards environmental policy in the Community sense and not, as Senator Keery said, a world-wide or United Nations conference or attitude towards environment.
As yet these new policies—industrial policy, environmental policy and economic and monetary union—have not been given a strict juridical basis. The Community is acting because there is the consent of the present members. The impetus was given at The Hague Summit in December, 1969, and this has been confirmed by the Council of Ministers. The countries are prepared to go ahead on the basis of their agreement. At the stage of finalising these policies, of implementing them by means of regulations and directives, they will be given juridical basis; they will have to be given juridical basis. This juridical basis will have to come from amendments of these Treaties.
The point I am trying to make is that this development is not necessitated by the obligations of membership. There is no necessity in the three Treaties as they stand to go on with this development. It is a dynamic process because the countries want it; it is not necessitated by the obligations of membership. Therefore, if a juridical basis is given to these policies by an amendment of the Treaties, by a new Treaty. say, in two or three years' time in 1974 or 1975, to allow legal steps to be taken in relation to economic and monetary union, to allow legal regulations in relation to the industrial policy and in relation to environmental policy, these will require a referendum here, because otherwise they are going to be in conflict with the Constitution. These regulations will not be operative here because they will not have been necessitated by the obligations of these Treaties of the Communities. The impetus is not a necessity; it is the will of the Community states. It is one thing to take something like transport policy, for which there is a solid juridical basis, and to implement that by means of regulations and to go on directives and decisions of the Community institutions. That is a straightforward development of the Community about which I have no problems or no hesitations at all.
It is quite another thing for the Community to have gone on to engage in other aspects such as industrial policy, such as even in the field of foreign policy, which will necessitate amendments of the Treaty in order to give them a strict juridicial basis and which will necessitate regulations— directives are better—which will be operative here and which will be in conflict with the Community. I think there is a great risk, if I am right in this line of reasoning, that we will find in three or four years time, when there is an amendment of the Constitution giving a juridical basis to the policies being formulated at the moment requiring a referendum, that this referendum could have very adverse effects. If there is an affirmative referendum in May of this year, which I gather is the proposed date of the referendum, it may be that after three or four years some of the ill effects of membership of the Community will have been felt and that some of the benefits of membership of the Community will not weigh against this; there could well be an adverse vote at that particular referendum and we would be in the ridiculous position that we could not carry out the obligations relating to economic and monetary union, in relation to industrial policy and in relation to environmental policy because they would be in conflict with our Constitution, because the regulations of the Communities dealing with industrial policy, dealing with environmental policy or economic and monetary union would not be law here because they would be in conflict with the Constitution; and because—and it is always going back to this key sentence —they would not be necessitated by the obligations of membership.
This phrase, to me, must be linked with the present three Treaties and only with the present three Treaties and the obligations under them. It is without doubt that the Community has gone beyond the strict obligations, that the plans for these various coordinated policies at Community level now, such as industrial policy, such as even economic and monetary union, are not arising out of a strict juridical basis.
I mentioned on Committee Stage that some commentators are of the view that economic and monetary union finds its base in Article 235, which I quote again:
If action by the Community appears necessary to achieve within the framework of the Common Market one of the objectives of the Community in cases where this Treaty has not provided for the requisite powers of action, the Council, acting by unanimous vote on a proposal of the Commission and after the Assembly has been consulted, shall enact the appropriate provisions.
Some commentators think that economic and monetary union can be based on and given juridical authority by Article 235; others think not. In relation to industrial policy and to environmental policy the suggestion has not been made that it can be based on Article 235.
These policies will, therefore, require amendments of one or all of the three Community Treaties. These amendments of the Treaties will not have been necessitated by the obligations of membership; they will have been agreed to by the states for their own wellbeing because they wanted to do this and decided to go ahead and do it. The decision came from a formula which originated in the Netherlands and which is now adopted by the member states on occasions when they are not acting as the Council of Ministers. They are acting as the heads of the Government of the Community countries agreed, not the Council of Ministers agreed, to a particular decision or policy.
I admit that until there is a juridical basis for these policies, then regulations, directives or decisions cannot be taken on the basis of them. This will be done as in the case of the fusion of the Community institutions into one Council and one Commission, the fusion of the high authority of the Coal and Steel Community and the two Commissions of the European Community and of Euratom. This was brought about by an enlarged Treaty and was adopted by the states. The problem with the amending Treaty which would give a juridical basis to these various policies is that they would not be necessitated by the obligations of the original three Treaties, but would be based on the desire and on the right of the states to do this.
The wording of this constitutional amendment has put us in a position where, in order to carry it out, we will require another referendum, not on a major issue such as political union or neutrality where it would be right to come back to the people. I am not happy with the wording of this amendment, as it would appear to give carte blanche to the Government.
It would be wrong to draft an amendment to the Constitution when the policies already adopted in substance by the Community are being worked out. Yesterday there was a substantial further step taken on economic and monetary union. We cannot adhere to these without a new referendum in a few years time whenever the Treaties are amended to give them a juridical basis.
It is a very short-sighted and strange way of amending our Constitution which allows us to assume the full obligations of the Communities. It is a desperate attempt to conceal the full impact of entering into the Communities. The Government are unwilling to admit that it goes beyond the strict obligations of the Communities—that there is a dynamic process involving more than that.
As originally drafted, the amendment would provide the alternative of nothing in the Constitution preventing us from adopting policies either necessitated by the obligations of membership or by policies adopted unanimously in the Council of Ministers of the Communities. I was unhappy with that because policies could be adopted unanimously in the Council of Ministers which would not be acceptable to the people. This is a very open-ended amendment and I should prefer that they would be given a legal basis by amendment of the aforesaid Treaties only in the normal way in which we amend a treaty, namely, the Executive enter into the treaty and then it is laid before the Dáil.
Nobody involved in the Communities believes there will not be an amendment of the Communities to give juridical basis to the various policies being entered on during the next few years. This is the real substance of the Community. The Treaty obligations in their full sense are mostly implemented. There is little in the Treaties which has not already been carried out. We are engaged in joining a dynamic body which have gone beyond the strict terms of the Treaty and which will amend the strict terms of the Treaty in a short period in order to give juridical basis to decisions already taken in relation to these areas of economic and industrial policy and so on.
We are leaving ourselves with only the very strict construction that the Constitution will be amended by laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership. There is nothing in the Treaties to necessitate the progression towards these new policies. They are not included in this amending Bill, and, therefore, we will have to come back to amend the Constitution in relation to them. This is both unnecessary and unwise. That is why I propose this amendment.
