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High Court dismisses first part of Sinn Féin challenge to Referendum Commission

The High Court will hold a special late-night sitting this evening to hear the second part of Sinn Féin’s call for a judicial review.

Gerry Adams on O'Connell Street this afternoon with Senator Kathryn Reilly, Mary Lou McDonald TD and Eoin O Broin.
Gerry Adams on O'Connell Street this afternoon with Senator Kathryn Reilly, Mary Lou McDonald TD and Eoin O Broin.
Image: Laura Hutton/Photocall Ireland

A HIGH COURT judge has dismissed the first part of Sinn Féin’s legal challenge against the Referendum Commission over whether Ireland has a veto on the ESM or not.

The party lodged a judicial review at the High Court this morning challenging comments made by the Commission on 3 May that the government no longer had a veto of the European Stability Mechanism.

Lawyers for SF TD Pearse Doherty argued that the credibility of the Referendum Commission has been seriously damaged and has led to “contamination” of the referendum process.

In the High Court this afternoon the judge dismissed the first three of eleven points brought by Sinn Féin to the court, saying that they weren’t ultra vires ( beyond the powers of the Commission) and that since the comments were made more than three weeks ago, Doherty could have availed of the opportunity to pursue the case before now.

The judge adjourned the case until 8pm tonight and the court is to seek the attendance of the Referendum Commission at this evening’s proceedings in the court. The Commission had not been required to attend events earlier in the day.

A spokesperson for the Referendum Commission told TheJournal.ie that it had not yet been asked to attend this evening as of 4pm, but that it would co-operate fully with the court.

Pearse Doherty said he welcomed the special sitting of the High Court.

The legal argument for a judicial review

Doherty’s legal team argued that comments on 3 May by the chair of the Commission about how Ireland had already given up its chance to veto ESM had been “inaccurate or misleading” or else, at the very least, “very incomplete”. A clarification was released “below the radar” with no press release and only a link on Twitter on 18 May, the legal team said.

The court heard from Doherty’s legal team that the Commission had “no hesitation in seeking publicity on the original issue” of the ESM but had not exercised the same eagerness to seek publicity when clarifying.

Doherty said afterwards that the original statement about the ESM had been used repeatedly by advocates of the Treaty as one of their key reasons for a Yes vote, despite the fact that the Commission qualified its position on 18 May.

“The failure of the Referendum Commission to retract the original statement and to adequately publicise their subsequent clarification has meant that the incorrect account of the matter has continued to be quoted widely”.

The judge said that it would be “inopportune” to make a decision on the remainder of the complaint about the publicity of the two statements without the Referendum Commission present.

The Attorney General is to be notified of proceedings because the matter is of such “high constitutional importance”, the judge said.

Sinn Féin argues that Ireland will still have access to funding from the European Stability Mechanism if the Fiscal Compact is rejected by voters in Thursday’s vote, and says that the Commission is wrong in how it has presented the facts about the issue to voters.

“Sinn Féin has consistently challenged the Government’s claim that emergency funding will not be available if people vote no on Thursday,” said Sinn Féin president Gerry Adams. “It is our firm view that this is not the case”.

Pearse Doherty’s legal team originally wrote to the Commission about the assertion on Friday, challenging its interpretation of the matter.

The judicial review, which concerns how a decision was made and whether or not it was fair, will resume at 8pm.

(Sinn Fein’s application for judicial review. Image: Gavan Reilly)

- Additional reporting by Gavan Reilly

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