High court judgment: Doherty -v- the Referendum Commission
Neutral citation (2012) IEHC 211.
High Court
Judgment was delivered on June 6th, 2012, by Mr Justice Gerard Hogan.
Judgment
The court refused leave to apply for judicial review of certain statements by the Referendum Commission, stating the commission’s analysis was “a considered, thoughtful, measured and legitimate analysis of complex legal issues”.
Background
Sinn Féin TD for Donegal North East, Pearse Doherty, brought the proceedings challenging some of the statements by Mr Justice Kevin Feeney, made on behalf of the Referendum Commission, of which he was chairman. Mr Justice Feeney’s name was struck out of the proceedings on the basis the commission itself was a body corporate.
Mr Justice Hogan said the application raised profound and very difficult questions involving complex and intricate issues in relation to constitutional law, European Union law, international law, the role of the courts in the referendum process, the method of treaty ratification and the role of the Government and Houses of the Oireachtas in it.
At the root of the problems facing the European Union was the fact the architects of the euro zone system did not envisage a situation where a member state would not be able to borrow on the capital markets. In an effort to deal with this, the European Council sought to amend article 136 of the Treaty of the Functioning of the European Union (TFEU) to allow for a permanent stability mechanism to provide a system of emergency loans.
Assuming the new article comes into force following approval by all 27 member states, this will form the legal foundation for a treaty establishing the European Stability Mechanism (ESM), to which the Treaty of Stability, Co-ordination and Governance (TSCG) cross-refers. This sought to improve the governance of the euro zone by ensuring all member states adhered to fiscal discipline.
At the heart of the issue before the court was the meaning of the phrase “constitutional requirements” as it appeared in article 2 of the European Council decision, and whether the Government could take steps not to have the council decision approved.
The Referendum Commission was given the power to prepare a statement in relation to the proposal going to referendum. Mr Doherty maintained its release of a statement on the issue of whether the Government could veto the ratification of the European Council Decision was ultra vires its powers.
Mr Justice Hogan said this claim was doomed to failure, as the ESM and the TSCG were inextricably linked and it would not realistically be possible to explain the likely impact of the TSCG without reference to the question of the ESM.
This in turn raised the question of whether statements of the commission were amenable to judicial review. Based on previous case-law from this and the neighbouring jurisdiction, he did not consider statements of the commission were entirely non-justiciable. However, the court would only interfere where the statement was plainly wrong or “manifestly inaccurate or misleading”. Otherwise the courts must refrain from any involvement in the referendum process.
Turning to the two commission statements concerning a possible veto of the ESM complained of by the applicant, who had argued that they were contradictory and should have been clarified, he said the explanation given on behalf of the commission, that there was no real difference between them, was the more likely.
The next and most fundamental issue was around the meaning of the words in the European Council decision. “That decision shall not enter into force until it is approved by the member states in accordance with their respective constitutional requirements.”
Mr Doherty contended that this meant the ultimate decision, like that concerning all international treaties, rested with the executive. Counsel for the commission and the Attorney General contended EU law was in many respects an autonomous corpus juris, so principles that might apply to other international treaties may not apply to it, although their positions were not identical.
In view of these competing arguments it would be impossible for the court at this juncture to express a definitive view, and to do so would require a reference to the European Court of Justice. There was unquestionably room for legitimate legal and political debate on this issue, Mr Justice Hogan said.
In conclusion, he said he was satisfied the commission’s analysis of complex legal issues was considered, thoughtful, measured and legitimate, and refused leave for judicial review.
The full judgment is on courts.ie
Richard Humphreys SC and Ruadhán Mac Aodháin, instructed by McGeehin Toale Solrs, for the applicant; Michael Collins SC and Ailbhe O’Neill, instructed by A L Goodbody, for the Referendum Commission; Noel Travers, instructed by the Chief State Solicitor, for the Attorney General (on notice).