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Court to rule on Pearse Doherty’s challenge against Referendum Commission comments

Doherty claims that the Referendum Commission changed its stance on Ireland’s veto of the ESM – and did not seek equal publicity for its second statement. The Commission rejects the claims.

THE HIGH COURT will rule in the morning on a complaint brought by Sinn Féin TD Pearse Doherty seeking a declaration that the Referendum Commission made a factual error in stating that Ireland had foregone its chance to veto the European Stability Mechanism.

Doherty yesterday asked the High Court to formally declare that the Commission had “erred in fact and in law” when stating at a press conference on May 5 that Ireland had already foregone its ability to veto the establishment of the European Stability Mechanism.

In a lengthy day of court sittings – beginning shortly after noon and concluding minutes before midnight – Doherty’s lawyers claimed a statement issued by the Commission on May 18 was a clarification of earlier inaccurate comments, but had not been given the same degree of publicity by the Commission as the original statement.

Lawyers clashed over the exact question that Commission chairman, Justice Kevin Feeney, was answering when he said Ireland “could have” sought to veto the ESM but had chosen not to.

Doherty’s team claimed Justice Feeney was answering a question on approving the European Council decision changing the EU’s treaties in order to allow for the ESM to be established, while counsel for the Referendum Commission later countered believed the question was specifically in relation to the ESM Treaty itself.

Richard Humphreys SC, for Doherty, argued that the original comments – which referred to the ability of the unlikelihood of the “Dáíl and Seanad” blocking the treaty – were substantially different to those of the May 18 statement, which referenced “Ireland”.

He argued that the reference to ‘Ireland’ included the ability of the government to decide it did not want to introduce the legislation into the Oireachtas in the first place, or to deposit an instrument of ratification – as is required by the ESM Treaty – even after the Oireachtas had ratified it.

‘No material difference’

Collins dismissed this, telling Justice Gerard Hogan that there was “no material difference” between the two statements – claiming the Referendum Acts required the Commission to use language which was accessible to the broader public – and that given it believed both statements to be accurate, the matter was “not a justiciable controversy”.

He later argued that the provisions within current EU treaties requiring countries to act “in good faith” to implement the decisions of the EU’s institutions including the European Council, the government was obliged to put the appropriate Bills before the Oireachtas and did not have the discretion to do otherwise.

Humphreys – arguing for Doherty, who was not present at the hearings – later argued that the decision to ratify a treaty or otherwise was an act of sovereignty which had not been undermined by other provisions.

The sides later sparred on the level of publicity sought for the statement on May 18; Doherty’s side told the court that a press release had not issued to raise awareness of the second statement – with the only notice of it being through a tweet – and sought a declaration that the Commission had erred in not looking to attract greater publicity.

The Commission’s counsel claimed that the original comments were made at a press conference, and not through a press release, and that given the comments were made in responsible to a press question – and that they were not incorrect in the first place – the matter did not arise.

‘Eleventh hour’

Both the Attorney General and the Referendum Commission asked Justice Hogan to dismiss all applications, given the timing of the requests and the time which Doherty had available to seek redress of what he believed was an inaccurate statement.

Counsel for the Attorney General said Doherty’s case had come “at the eleventh hour and fifty-ninth minute”, and said Doherty had the legal option – as provided for in the Referendum Acts – to lodge a petition challenging the referendum outcome, if he genuinely believed Justice Feeney’s original comments were inaccurate and had influenced the outcome of Thursday’s ballot.

Justice Hogan said he would issue an oral ruling at 10:30am, but said it would be “impossible” to have a ruling in writing, which he hoped to issue by June 6. Counsel for the Attorney General had requested that a ruling be issued before the broadcasting moratorium took effect, given the effects of having the matter “hanging in the air” after that time.

The court had yesterday morning dismissed applications from Doherty seeking declarations that the Referendum Commission had acted beyond its powers in even discussing the European Council’s decision on the ESM, with Justice Hogan finding that the matters were inextricably linked and that Doherty had delayed in bringing his application.

The Broadcasting Authority of Ireland told that it was up to individual broadcasters to decide how to observe the moratorium, but said broadcasters needed to exercise caution in how they reported on the outcome of the case, so as not to comment on the merits of either the Yes or No campaigns.

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