SINN FÉIN TD Pearse Doherty yesterday lost a High Court challenge aimed at having the Referendum Commission withdraw remarks concerning Ireland’s veto over the European Stability Mechanism (ESM).
The Co Donegal TD’s action, which was opposed by the commission and the State, centred on two statements by the commission on whether Ireland had a veto over the ESM’s coming into being.
Mr Justice Gerard Hogan said the first statement, made by commission chairman Mr Justice Kevin Feeney at a press conference on May 3rd, could not be said to be misleading, or at this stage to be “clearly wrong”, as argued by Mr Doherty, or “likely to affect the result of the fiscal referendum”.
The judge said the three sides in the proceedings had advanced three slightly different arguments concerning Ireland’s ability to veto the ESM. The court would not express a view on any of these, other than to say there was room for debate on the issues.
The court must “remain strictly neutral” in terms of any political debate, the judge said.
However, the case had raised complex, important and novel issues concerning European, international and Irish constitutional law which, he suggested, might be considered by the European Court of Justice and the Irish Supreme Court.
It was accepted that the courts had the jurisdiction to interfere with a decision of the Referendum Commission. However, in this instance he was satisfied the commission had done nothing to promote one side or the other.
The Donegal South West TD brought the proceedings following comments by Mr Justice Feeney in response to a question about an Irish veto over the ESM. Ireland, said the commission chairman, had “already agreed to the establishment of the ESM”.
His statement added that the Dáil and Seanad had “yet to ratify the treaty”, and that “it was clear that a veto could have been exercised but Ireland has already agreed to the establishment of the ESM”.
Mr Doherty claimed this statement meant Ireland no longer had the ability to use its veto, a suggestion which he disputed. The comment had received a lot of attention in the media, he said, and it had become a matter of debate between the Yes and No sides in the referendum.
Mr Doherty claimed that a subsequent statement published on May 18th on the commission’s website gave a more accurate version of the State’s entitlement to veto the ESM.
This second statement which, it was submitted, clarified the situation, suggested it was still open to Ireland to use the veto, as Mr Doherty had argued. This may have aided the No side, but it had effectively been slipped in below the radar, it was claimed.
Richard Humphreys SC, for Mr Doherty, said the first statement gave prominence to Yes arguments in the campaign. The words used in that statement, counsel said, gave the impression that Ireland could not veto the ESM.
It was extraordinary that a body charged with providing the public with information did nothing to draw attention to its amended position, counsel said.
It was the commission’s function to give out the facts on a neutral basis, he added.
He said Sinn Féin had been “castigated” by those in favour of the treaty for a statement it made in relation to Ireland’s ability to veto the ESM.
The second statement was more accurate but was not publicised, counsel said.
Mr Doherty had not taken the action for personal gain but rather to ensure that the Irish public was fully informed, he added.
Mr Doherty sought a number of declarations including that the commission erred in fact and law in making the first statement, which was incorrect and misleading, and the statement should have been withdrawn in light of the interpretation put on the statement in the media.
Mr Doherty also sought declarations that the commission failed to take reasonable steps to draw attention to and to ensure that the May 18th statement got public prominence, and that the commission breached its duty to give accurate and neutral information in relation to today’s referendum.
Michael Collins SC, for the commission, said the application was “flawed and misconceived”, and the legal submissions made on Mr Doherty’s behalf were “untenable”.
Counsel said there was “nothing wrong with” and “no inconsistency” between the full statements made by the commission on May 3rd and May 18th.
Noel Travers, for the Attorney General, who was a notice party to the case, argued that what the commission had said was perfectly accurate.
The judge said Mr Doherty’s complaint that the commission failed to highlight the second statement was “not well founded”. There was no difference of substance between the two statements, he said.
He also rejected claims by the commission and the Attorney General that Mr Doherty had delayed bringing what the court found was an important action.
The judge expressed the hope that the Irish people would inform themselves about the fiscal treaty and decide “in the interest of themselves, their neighbours and the country” in today’s vote.
He adjourned the matter to the new legal term in June, when, he said, he would give a written reason behind his judgment and decide on the issue of costs.
Both Mr Doherty and the commission indicated they would apply for costs.