Referendum challenge rejected

The High Court has rejected an application by a Sinn Féin TD aimed at having the Referendum Commission withdraw remarks it made earlier this month concerning Ireland’s veto over the European Stability Mechanism (ESM).

Pearse Doherty's action centred on a statement made by the commission chairman Mr Justice Kevin Feeney over whether Ireland has a veto over the establishment of the ESM.

The Donegal South West TD  brought the proceedings arising out of comments made by Mr Justice Feeney on May 3rd last by stating, in response to a question on whether Ireland could veto the ratification of the amendment to Article 136 of the Treaty on the Functioning of the EU, that Ireland has “already agreed to the establishment of the ESM”.

The statement added it was clear that a veto could have been exercised but Ireland has already agreed to the establishment of the ESM. Mr Doherty claimed the statement was misleading or likely to affect the result of the fiscal referendum.

The commission issued a subsequent statement on May 18th that Mr Doherty claimed gave a more accurate version of the State’s entitlement not to ratify the amendment to article 136.

This morning, Mr Justice Gerard Hogan said the application must stand refused. He said if one subjected the two commission statements to highly detailed scrutiny there may perhaps have been certain nuanced differences. “But I’m not convinced any of any real difference of substance between the two statements.”

He said the complaint made by Mr Doherty to the effect that the commission took no active steps to give publicity to a clarifying statement was not well founded.

At the core of Mr Doherty’s other argument, he said, was that Ireland’s constitutional requirement in relation to the European Council decision meant that the ultimate ratification or approval rested completely and entirely with the executive.

He said it was fair to say that Mr Doherty’s argument reflected orthodox and conventional thinking, but it was important to say that such matters had not been formally considered by the courts or writers of legal text books.

The Referendum Commission had argued that the Government could not, consistent with existing EU obligations, “renege” on a commitment already given on a European Council decision.

He said there was obviously room for legitimate legal and political debate on the question. The Referendum Commission statement was its “best analysis” of the issue and there was absolutely no doubt that it was considered, thoughtful, measured and an absolutely legitimate argument. He said he was not in a position to pronounce that the statement was clearly wrong or likely to affect the referendum result.

A final resolution on the matter could only be determined by reference by the European Court of Justice and a dialogue between the Supreme Court and the Court of Justice.

“I can’t say at all that the Referendum Commission statement is plainly wrong or incorrect, still less that it’s likely to materially affect the result.” He repeated his view that the Referendum Commission statement was sincere and genuine.

The issue presented was one of such difficultly and such novelty that it had not been explored in the manner that it needed to be explored, he said.

He repeatedly mentioned that the case had been brought forward at a very late stage. It was “deeply unfortunate”. It would be tempting for him to find against the application on grounds of delay alone, but he was not going to do so, he said in his opening remarks this morning.

Concluding, he said the case had been wonderfully argued and the population at large should not be inert and should inform themselves about the referendum. He said that for the reasons he had offered the application must stand refused. Costs will be determined on June 14th.

Speaking outside the court afterwards, Sinn Féin leader Gerry Adams said he did not accept that Mr Doherty had lost. He said an important principle had been established. Mr Adams said the opinion expressed by Mr Justice Feeney was “only an opinion”, which was as valid as the position of Mr Doherty, Sinn Féin and himself.

Taoiseach Enda Kenny this morning described the Sinn Féin challenge as a "sideshow". He was speaking as he canvassed commuters outside Pearse Street Dart Station in Dublin. Earlier, Tánaiste Eamon Gilmore described the case as a "publicity stunt".

In an affidavit, Mr Doherty said he was not challenging the holding of the referendum or favour any side in the vote, but with the conduct of the commission in relation to comments.

This statement, he submitted, had become a matter of debate between the Yes and No sides in the fiscal treaty referendum, and the comment received a lot of attention in the media.

One of the main issues of the campaign is Ireland’s ability to access funding in the event of a No vote, he stated. It has been set out that as part of the treaty that established the ESM that member states must ratify the fiscal treaty in order to draw down from the fund established by the ESM.

However, in a subsequent statement on May 18th last, another statement was issued that gave a more accurate version of the State’s entitlement not to ratify the amendment to article 136.