British Brinkmanship and Gaelic Games: EU Treaty Ratification in the UK and Ireland from a Two Level Game Perspective

Published date01 November 2014
Date01 November 2014
DOIhttp://doi.org/10.1111/1467-856X.12015
Subject MatterArticle
British Brinkmanship and Gaelic Games:
EU Treaty Ratif‌ication in the
UK and Ireland from a Two Level
Game Perspective
Dermot Hodson and Imelda Maher
Research Highlights and Abstract
Viewed from the theory of two-level games, the European Union (EU) Act (2011) is
a rare example of a government tying its hands in international diplomacy.
The UK government could f‌ind its hands more tightly bound than anticipated under
the EU Act, inter alia, due to the enhanced role of the courts in EU treaty ratif‌ication.
The EU Act could convey bargaining advantages to the UK, but it could also encour-
age other EU member states to walk away from the negotiating table.
The risks posed by tighter ratif‌ication rules are borne out by Ireland’s experience of
EU treaty ratif‌ication since the Supreme Court ruling Crotty v. An Taoiseach (1987).
David Cameron’s ‘veto’ of plans for a new EU treaty in December 2011 illustrates the
diff‌iculties of knowing ex ante when a referendum is required under the EU Act.
The European Union (EU) Act (2011) provides for greater parliamentary oversight and the
possibility of a referendum before EU treaties can be ratif‌ied. This article explores the EU Act from
a two-level game perspective, seeing it as a rare example of a government tying its hands in
international diplomacy. That the UK government could f‌ind its hands more tightly bound than
anticipated is suggested by Ireland’s turbulent experience of treaty ratif‌ication in the light of Crotty
v.An Taoiseach (1987), a landmark ruling by the Irish Supreme Court and an inspiration for the
EU Act. This situation could, the theory of two-level games predicts, bolster the UK’s bargaining
position in Brussels, but it could also damage the country’s credibility and encourage other member
states to walk away from the negotiating table. This last point helps to shed some light on the UK’s
‘veto’ of the Fiscal Compact in December 2011.
Keywords: ratif‌ication; two-level game; tying hands; Crotty; EU act; f‌iscal
compact
Introduction
Robert Putnam’s theory of two-level games posits that a government can, under
certain conditions, boost its bargaining position in international negotiations by
adopting more stringent ratif‌ication rules at home (Putnam 1988, 441).1Twodecades
of scholarship have generated numerous theoretical insights into what these condi-
tions are (e.g. Mo 1995; Milner and Rosendorff 1996; Leventog˘lu and Tarar 2005)
alongside evidence that domestic ratif‌ication constraints can be an advantage
in international deal making (e.g. Clark et al. 2000; Konold 2010). There are
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doi: 10.1111/1467-856X.12015 BJPIR: 2014 VOL 16, 645–661
© 2013 The Authors. British Journal of Politics and International Relations © 2013
Political Studies Association
nonetheless comparatively few concrete examples of governments making it more
diff‌icult to ratify international agreements (Pahre 1997; Hug and Schulz 2007).
Viewed against this backdrop, the European Union (EU) Act 2011, which became
law in the United Kingdom in July 2011, is signif‌icant. Although the passage of the
Act provoked little public debate, Members of Parliament (MPs) made much of its
‘sovereignty clause’, which states that EU law can take effect in the UK only
through an Act of Parliament (House of Commons European Scrutiny Committee
2010).2This clause places the common law doctrine of parliamentary sovereignty
on a statutory footing, and in doing so codif‌ies the orthodox position of the UK
courts that the supremacy of EU Law is based on national law (Gordon and Dougan
2012; Craig 2011, 1937; House of Lords Constitution Committee 2011).3Altogether
more radical are the Act’s provisions for approving EU treaty revisions, which give
Parliament a greater say in the ratif‌ication process, specify the conditions under
which a referendum must be held and enhance the scope for judicial review in cases
where the government chooses not to hold a public vote.4
There is more than one way to interpret this ‘referendum lock’. Murkens (2012,
396–397), for example, sees the EU Act as sending ‘an important political signal to
the Europhobic wing of the Conservative Party ... that its concerns would in the
future be taken seriously’. Lynch and Whitaker (2012, 18) disagree on the grounds
that the Act is likely to leave ‘the Eurosceptic appetite for a referendum unsatisf‌ied’
for now because the May 2010 Coalition Agreement between the Conservatives
and Liberal Democrats has effectively ruled out support for the kind of treaty
change that would trigger a referendum.5Either way, this remains a fast-moving
and fractious area of UK politics, with David Cameron announcing in January 2013
that he would, if the Conservatives win the next general election, seek a ‘new
settlement’ with the EU before holding an in-out referendum on remaining in the
Union (Cameron 2013). This article explores the scope and limits of treaty ratif‌i-
cation under the EU Act from a two-level game perspective using Ireland’s expe-
rience of ratif‌ication in the light of Crotty v. An Taoiseach (1987), a landmark ruling
by the Irish Supreme Court, as a comparative case study. It seeks, in the f‌irst
instance, to show that the Act signif‌icantly reduces the core executive’s discretion
over how to ratify EU treaty changes and is thus a seldom seen instance of a
government tying its hands in international negotiations.
Students of the EU Act have already looked to the German Federal Constitutional
Court’s ruling on the Lisbon Treaty in June 2009 for inspiration (Gordon and
Dougan 2012; Craig 2011) but comparison with Crotty is also valid here. Ireland is
one of a small minority of EU member states with a ‘referendum lock’—France,
Denmark and Slovakia are also typically included on this list—and the only one to
require a mandatory referendum on all constitutional changes. Ireland’s approach
to treaty ratif‌ication was, moreover, cited by UK Prime Minister David Cameron
(2009) as a spur for the EU Act. The lesson from the Irish case, this article argues,
is that the UK could f‌ind its hands more tightly bound than anticipated as a result
of the EU Act but without the same options for overcoming ratif‌ication failures. EU
member states could respond to the resulting risks of involuntary defection from
treaty revisions, the theory of two-level games implies, by walking away from the
negotiating table.
646 DERMOT HODSON, IMELDA MAHER
© 2013 The Authors. British Journal of Politics and International Relations © 2013 Political Studies Association
BJPIR, 2014, 16(4)

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