A quarter of a century of voter power


MY FAVOURITE CASECrotty v An Taoiseach and Others

CROTTY - V - AN Taoiseach and Others, more commonly referred to as the Crotty case, is a seminal constitutional judgment. As a consequence of the Crotty judgment (25 years old this year), all major EU treaties have to be put to the Irish people by way of referendum. Some commentators regard this as an unnecessary interference in a representative democracy, which disallows our elected legislature from making some key decisions in foreign and economic policy, whilst others celebrate the judgment for the democratic safeguards that it provides.

The Single European Act (SEA) was an international treaty which aimed to establish closer economic and political co-operation amongst member states. The Government decided that the Houses of the Oireachtas and not the people of Ireland would vote to ratify the treaty. In the final month of 1986 the coalition government, led by then taoiseach, Dr Garret Fitzgerald, passed the European Communities (Amendment) Act 1986 so as to ensure that the treaty (SEA) came into force throughout the EU (then known as the EEC), as originally planned on the January 1st, 1987.

Raymond Crotty, a university lecturer, contended that the Single European Act gave new legislative and executive competence to the European institutions which went far beyond the exercise of powers that the people permitted when they voted in 1972 to join the EEC.

A number of prominent lawyers, including Seán MacBride SC, Rory Brady (later attorney general), Mary McAleese (later president), Aindrias Ó Caoimh and Michael White (later High Court judges) called for a referendum to be held. The then taoiseach, having experienced two recent setbacks in referendums, resisted this growing public clamour.

Crotty’s application seeking an interlocutory injunction to restrain the government from taking any further steps to ratify the treaty (SEA) without first holding a referendum was decided by the High Court on Christmas Eve 1986.

Crotty knew that around this same time the president had either to affix his seal or refer the Bill to the Supreme Court, and he was also aware that the State, anticipating that the President would sign the legislation and ratify the treaty, had an aircraft on standby at Casement Aerodrome to deposit the instrument of ratification of the Single European Act with the government of Italy, then the designated country for ratification, and once this was done, the treaty would be almost immune from further legal challenge.

During the course of the court hearing, President Hillery signed the legislation into law. This made Crotty’s case legally stronger as he was now challenging legislation which had become an Act of the Oireachtas, as distinct from attacking a Bill which had yet to be signed into force.

The most compelling argument advanced by Crotty’s legal team was that provisions in the Single European Act committed Ireland to formulating European foreign policy which would be repugnant to the Constitution, which asserts Ireland as a sovereign, independent, democratic State and affirms Ireland’s neutrality.

The State’s main argument relied on the established legal authority where the courts presume that the law is in accordance with the Constitution and that the courts will not interfere in a government decision, unless the circumstances are such as to amount to a clear disregard by the government of the powers and duties conferred upon it by the Constitution.

The State also submitted that Crotty had no locus standi (legal standing) to take the case and cited a famous “legal hazard warning” given in a judgment by Mr Justice Henchy, “for the litigious person, the crank, the obstructionist, the meddlesome, the perverse, the officious man of straw and many others, the temptation to litigate the constitutionality of a law, rather than observe it, would prove irresistible on occasion”.

After hearing the case over three days, Mr Justice Barrington took less than one hour to compose his legal thoughts before delivering his judgment later that afternoon. When an offer from Crotty to share the stenography costs with the State in order to record the anticipated long and complex judgment proved fruitless, Seamus Ó Tuathail, then a junior counsel for the plaintiff, cycled to Capel Street to buy a tape recorder before the shops closed for Christmas, permitting the judgment to be recorded.

Mr Justice Barrington described the constitutional challenge as without precedent and extremely difficult, and in a ground-breaking judgment granted Crotty the temporary injunctive relief sought. He held that the consequences of refusing the injunction and possibly later granting the plaintiff the relief at the trial of the action would involve entering an uncharted area of litigation in view of the potential conflict which would then exist between domestic law and the State’s international obligations.

On February 12th, 1987, a three-person High Court (Divisional Court) ruled against Crotty, discharging the interlocutory injunction granted to him on Christmas Eve on the basis that the plaintiff lacked the necessary legal standing to bring the action.

As it was being delivered, Crotty’s lead counsel, Paul Callan SC, made his way quietly and quickly to the Supreme Court to seek an interim order continuing the Christmas Eve injunction restraining the government from ratifying the treaty until the matter was determined by the Supreme Court. The court acceded to this application and thus the government’s chartered aircraft remained grounded.

On April 9th, 1987, the Supreme Court held that the European Communities (Amendment) Act 1986 was not repugnant to the Constitution and that the president had acted in accordance with the Constitution in signing the Bill into law.

However, crucially for Crotty, the Supreme Court divided 3:2 in his favour when ruling that the SEA (the treaty) was unconstitutional.

The majority of the Supreme Court found that the plaintiff did have the necessary legal standing to bring the action. Mr Justice Walsh held that the freedom to formulate foreign policy is just as much a mark of a democracy as the freedom to form economic policy and the freedom to legislate and concluded that the assent of the people as guardians of the Constitution was a necessary prerequisite to the ratification of the SEA (the treaty).

The deciding vote was cast by Mr Justice Hederman, who delivered it to a packed courtroom with numerous European diplomats and world media. Coming down emphatically in favour of Crotty, he held that the State cannot fetter powers bestowed unfettered by the Constitution. They are the guardians of these powers – not the disposers of them.

This is my favourite case for many reasons: it celebrates the cherished access to justice that an individual is afforded in this country, which should never be taken for granted; the Crotty legal team epitomised the time honoured pro bono tradition of the independent referral Bar, which must be safeguarded; the judgment continues to have a huge impact on our democratic system – the upcoming fiscal treaty referendum would not be taking place were it not for one person’s courageous stand against the resources and mindset of the establishment at that time.

Vincent Martin is a barrister