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High Court dismisses Doherty complaint against Referendum Commission

The High Court rules that there is not sufficient clarity between Irish and EU laws about how countries ratify certain measures.

Image: Laura Hutton/Photocall Ireland

Updated 13.39

THE HIGH COURT has dismissed an application by Pearse Doherty seeking a declaration that the Referendum Commission made a misleading statement, when it suggested that Ireland had already foregone its opportunity to veto the establishment of the European Stability Mechanism.

In an oral ruling, Mr Justice Gerard Hogan said he could not accept Doherty’s argument that the government still had the power to opt not to refer the necessary measures to the Dáil, despite having already agreed to them at European Council level.

Justice Hogan said the argument ultimately rested on the exact measures required by individual EU member states to approve amendments to the EU’s founding treaties, and that it was not sufficiently clear how Irish, European and international laws interacted in this regard.

“It is simply that the issue presented is one of such difficulty and such novelty that it has not been explored in the manner that would need to be explored by the [European] Court of Justice,” Justice Hogan said.

Arguments centered on how Ireland’s obligations under EU treaties – to act “in good faith” in implementing decisions made at the European Council – interacted with the Constitutional role of the government to act in matters of foreign affairs.

Acute time pressures

Justice Hogan said he was not in a position – particularly given the timing of the case – to pronounce whether the Referendum Commission’s opinion, that Ireland had already foregone its ability to veto the ESM, was clearly wrong:

Because it is impossible for me at this juncture to express a definitive view, in part because of the very acute time pressures, I can merely observe that there is room for legitimate legal and political debate on this question.

There were three relevant constitutional principles involved, he said: the theory of popular sovereignty, freedom of speech, and the equality of citizens. The Constitution placed “a premium on honest and fearless debate”, he said.

Doherty had argued that the comments of the Commission chairman Kevin Feeney on May 3, which said Ireland “could have” vetoed the ESM but had opted not to do so, were incorrect because the government could still decide not to table the necessary legislation in the Houses of the Oireachtas.

He also claimed that even after the Oireachtas had approved the ESM Treaty, ratification was not complete until the appropriate minister had signed, and lodged, an Instrument of Ratification – something he believed the government had an executive right to withhold.

The Referendum Commission and the Attorney General had argued that Ireland was bound by decisions of the European Council – in this case, to amend European treaties so that the ESM could be established – and that countries were required to act in order to implement its decisions.

The Court also dismissed arguments put forward by Doherty’s legal team that a second statement issued by the Commission clarifying the position, on May 18, was materially different from Justice Feeney’s original comments on May 3.

Because there was no difference in their substance, the Court further dismissed arguments that the Commission had not sought the same level of publicity for the second statement as it had for the first.

The court yesterday dismissed an argument that the Commission was acting ultra vires in discussing the ESM Treaty in the first place, finding that the two matters were too closely related to be treated in isolation.

‘Call to action’

Justice Hogan said the questions in the case “should be regarded as a call to the population at large not to be inert, to inform themselves, and having considered both arguments, to make a reasoned decision in the interests of themselves, their neighbours and their country”.

“That is what the Constitution wishes and desires,” he said. “I can only echo the hope that that is what the people will do.”

The judge set a provisional date of June 6 to issue a written ruling and to rule on costs.

Senior Sinn Féin figures including party president Gerry Adams and vice-president Mary Lou McDonald were present for the ruling. Doherty himself was not present for the ruling.

Reaction: SF welcomes High Court’s agreement on ‘legitimate room for debate’

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Gavan Reilly

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