Sutherland criticises judges over decisions
Former attorney general says decisions on EU treaty change contravene Constitution
Former attorney general Peter Sutherland said the 1987 Crotty judgmenthas forced successive Irish governments to take “extreme minimalist” positions in negotiations on EU treaty changes. Photograph: Frank Miller
Former attorney general Peter Sutherland has criticised Irish judges in relation to a range of decisions made on EU treaty changes and the manner in which referendums are held.
Mr Sutherland was particularly critical of the 1987 Crotty judgment, which found that elements of the EU’s Single European Act dealing with foreign affairs were in contravention of the Constitution, in his speech at a conference on economic sovereignty at the Institute of International and European Affairs.
To ratify the treaty, the then government was obliged to hold a referendum to change the constitution.
This, he said, was the key decision which has forced successive Irish governments to take “extreme minimalist” positions in negotiations on subsequent EU treaty changes.
Mr Sutherland, who is chairman of Goldman Sachs International, an investment bank, said the judgment has had consequences for Ireland that have been “serious and damaging”. He described the Crotty decision as “clearly wrong” because the final decision on foreign affairs over the decades since the treaty came into force had remained very firmly with the member states.
Mr Sutherland was critical of other interpretations of the constitution by the judiciary. He described the 1995 McKenna judgment, which limited the right of the government of the day to fund campaigns in referendums, as causing “distortions in the processes of democracy in this country”.
He described the obligation placed on broadcasters flowing from the 2000 Coughlan judgment to give equal time to both sides in all referendums as “unwarranted interference” and “quite wrong”.
He also said referendums tend to reduce complexities to banalities in public discourse.
Dr Gavin Barret, a constitutional law expert at University College Dublin, agreed with most of Mr Sutherland’s criticisms, describing the McKenna decision as “very real judicial legislation”. Under the Constitution, only the Oireachtas can make laws.