SINN FÉIN TD Pearse Doherty has asked the High Court to consider granting a declaration that the Referendum Commission is obliged to draw attention to clearly contestable issues of law that arise in a referendum.
The commission should clearly state, when it put forward a position on a clearly contentious issue of law, that there was room for legal and political debate on that issue, the TD’s counsel argued yesterday.
Mr Doherty says such a declaration arises from the judgment of Mr Justice Gerard Hogan in which the judge, while rejecting his challenge to remarks by the commission concerning whether Ireland had a veto over the European Stability Mechanism (ESM) coming into being, also said there was “unquestionably” room for legitimate legal and political debate on that issue.
Mr Justice Hogan last week dismissed Mr Doherty’s action and set out his full reasons for doing so in a written judgment yesterday.
As the judgment was about to be handed down, Richard Humphreys SC, for Mr Doherty, said he was submitting, in the “unusual and fast-moving” circumstances of the case, a declaration naturally arose from the judgment.
That declaration was to the effect that if the commission put forward a position on a contentious issue of law, it should make clear there was room for legal and political debate on that and that there was a contestable issue of law.
Mr Justice Hogan said he believed any such declaration would have to be applied for via a formal notice of motion as jurisdictional and other issues arose. Mr Humphreys said he believed a declaration arose out of the judgment and a net point was involved.
Lawyers for the commission and the Attorney General indicated they regarded the judgment as being definitive but asked for time to consider the declaration issue. The judge directed any motion for a declaration should be issued by Friday and, if one was issued, said he would deal with that and the costs of Mr Doherty’s proceedings on June 14th.
In his written judgment, Mr Justice Hogan said, without a reference to the European Court of Justice of the very complex issues involved, it was “impossible” for him at this juncture to express a definitive view on the ultimate question raised in the case.
That issue was whether the Government could veto or refuse to approve the March 2011 European Council decision to amend the Treaty on the Functioning of the European Union to allow for a mechanism to provide emergency loans on strict conditions to distressed EU states.
Mr Doherty had argued the Government could refuse to take steps not to have the EC decision approved but, for different reasons, the Attorney General and commission argued the Government had no further role in that matter.
Mr Doherty placed particular emphasis on a statement by commission chairman Mr Justice Kevin Feeney made at a press conference on May 3rd in which he said: “It is clear that a veto could have been exercised but Ireland has already agreed to the establishment of the ESM and the agreement still has to be ratified by the Dáil and Senate.”
That statement, Mr Doherty argued, was inaccurate and he claimed a more accurate one was “slipped in below the radar” on the commission’s website on May 18th which said: “It would be possible for Ireland to decide not to ratify the change (despite agreeing to make the change).”
Mr Justice Hogan said, while “certain nuanced differences” could be detected in the two statements, the key point in both was that Ireland could have refused to agree to the establishment of the ESM treaty but, as it had been agreed to, ratification was subject to parliamentary ratification.
In the circumstances, the judge said he could not find the commission’s statements on the veto issue were clearly wrong or likely to affect the referendum result. He was satisfied the commission had performed the task of informing the public to the best of its ability.
