Doherty v Referendum Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 06 June 2012
• Neutral Citation: [2012] IEHC 211
• Court: High Court
• Date: 06 June 2012

Doherty v Referendum Commission & Judge Feeney

BETWEEN/

PEARSE DOHERTY

APPLICANT

AND

THE REFERENDUM COMMISSION

AND

THE HONOURABLE MR. JUSTICE KEVIN FEENEY

RESPONDENTS

[2012] IEHC 211

481 JR/2012

THE HIGH COURT

CONSTITUTIONAL LAW

Amendment

Referendum -Referendum Commission statements - Referendum in relation to ratification of treaty - Statements in relation to complementary treaty - Whether amenable to judicial review - Whether ultra vires - Whether clearly wrong and likely materially to affect outcome of referendum - Whether relief should be refused on grounds of delay - McKenna v An Taoiseach (No 2) [1995] 2 IR 10 applied; R v Secretary of State for the Environment, Ex parte Greenwich London Borough Council (Unrep, English High Court, 16/5/1989) followed; McKenna v An Taoiseach (No 1) [1995] 2 IR 1 distinguished; Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) [1963] ECR 1 and Kraaijeveld v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403 considered - Referendum Act 1998 (No 1), s 3 - Referendum Act 2001 (No 53), s 1 - European Council Decision 2011/199/EU - Treaty on European Union, Article 48(6) - Treaty on the Functioning of the European Union, Article 136 - Constitution of Ireland 1937, Article 29 - Application refused (2012/481JR - Hogan J - 6/6/2012) [2012] IEHC 211

Doherty v Referendum Commission

Facts section 3 of the Referendum Act 1998, as amended, provides that the respondent has the power, inter alia, to "prepare one or more statements containing a general explanation of the subject matter of the proposal and of the text thereof in the relevant Bill and any other information relating to those matters that the Commission considers appropriate." The applicant applied for judicial review of certain public statements made by the respondent in the course of the campaign for the referendum in respect of the Thirtieth Amendment to the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill 2012. He contended, inter alia, that inasmuch as the respondent had made a statement on the issue of whether Ireland could veto the ratification of the European Council Decision of the 25th March 2011, it was ultra vires its powers under section 3 of the Act of 1998.

Held by Mr Justice Hogan in dismissing the application,1, that, from the terms of the Referendum Act 1998, the Oireachtas intended that the Referendum Commission should have legal personality. The very fact that the Commission was established by statute carried with it the inevitable corollary that it was a juristic person created by statute.

2. That the Commission's statements should not be parsed or analysed for the absolute precision and complete accuracy of discussion or analysis which would be expected in, for example, an authoritative constitutional law textbook. This meant in practice that the Commission must be given a wide freedom to communicate its message to the wider public.

3. That the references by the respondent to the ESM treaty constituted "other information relating to those matters that the Commission considers appropriate" within the meaning of section 3 of the Act of 1998 and it followed that the Commission was fully entitled to publish the information concerning the ESM treaty which it did.

4. That, given that the respondent was publicly funded, it could not deviate from the principle of strict neutrality, since this would be to violate the constitutional principle of equality in the referendum process. McKenna v. An Taoiseach (No.2) [1995] 2 I.R. 10 applied.

5. That statements made by the respondent were capable of review by the courts and they did not present an entirely non-justiciable matter.

6. That the court could only interfere with a statement made by the respondent where the statement was plainly wrong or manifestly inaccurate or misleading. R v Environment Secretary, ex p. Greenwich LBC (The Times, 17th May, 1989) considered. It would also be necessary to demonstrate such an erroneous statement was likely materially to affect the outcome of the referendum.

7. That the Government retained the right not to accept or approve a particular international treaty in the stages leading up to the ultimate ratification by depositing the instruments of ratification by virtue of the dualist nature of the State and the assignment of the foreign affairs power to the Executive by Article 29.4.1 of the Constitution.

8. That it was impossible for the Court to express a definitive view on the ultimate question raised - namely whether the Government could, of its own motion, refuse to approve the European Council decision - without an immediate reference of those questions to the Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union.

9. That that the respondent's analysis was a considered, thoughtful, measured and legitimate analysis of complex legal issues. In the circumstances, the Court was not in a position to pronounce that its statements were clearly wrong or likely to affect the referendum result.

TREATY ON EUROPEAN UNION ART 123

TREATY ON EUROPEAN UNION ART 125

TREATY ON EUROPEAN UNION ART 48(6)

TREATY ON EUROPEAN UNION ART 136(3)

PROTOCOL ON THE EXCESSIVE DEFICIT PROCEDURE ART 1

TREATY ON STABILITY COORDINATION & GOVERNANCE ART 8

RIORDAN v AN TAOISEACH (NO.2) 1999 4 IR 343

EASTERN HEALTH BOARD v FARRELL 2000 1 ILRM 446

REFERENDUM ACT 1998 S2

REFERENDUM ACT 1998 S2(3)

REFERENDUM ACT 1998 S3(4)

REFERENDUM ACT 1998 S3(10)

MINISTERS & SECRETARIES ACT 1924 S2

CONSTITUTION ART 6(1)

DPP v MURRAY UNREP CCA 27.2.2012 2012 IECCA 60

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 46

CONSTITUTION ART 47

CONSTITUTION ART 40.6.1

D (M) v IRELAND SUPREME UNREP 23.2.2012 2012 IESC 10

MCKENNA (NO.2) & ORS v BROADCASTING COMPLAINTS COMMISSION 2000 3 IR 1

KELLY v MIN FOR ENVIRONMENT 2002 4 IR 191

CONSTITUTION ART 40.1

REFERENDUM ACT 2001 S1

REFERENDUM ACT 1998 S3

MCKENNA v AN TAOISEACH (NO.2) 1995 2 IR 10

MCKENNA v AN TAOISEACH (NO.1) 1995 2 IR 1

R v ENVIRONMENT SECRETARY , EX P GREENWICH LBC THE TIMES 17.5.1989

REFERENDUM ACT 1994 S43(3)

REFERENDUM ACT 1998 S12

TREATY ON EUROPEAN UNION ART 136

CONSTITUTION ART 29

CONSTITUTION ART 29.4.1

CONSTITUTION ART 29.5.1

CONSTITUTION ART 29.5.2

VAN GEND END LOOS 1963 ECR 1

TREATY ON EUROPEAN UNION ART 48(6)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288(4)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 4(3)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288

PK KRAAIJEVELD 1996 ECR I-5403

SHAW INTERNATIONAL LAW 5ED 2003 P820

EUROPEAN COMMUNITIES ACT 1972 S1

EUROPEAN UNION ACT 2009 S2

EUROPEAN UNION ACT 2009 S3

CONSTITUTION ART 29.6

EUROPEAN COUNCIL DECISION 25.3.2011 ART 2

CONSTITUTION ART 29.4.8(II)

CONSTITUTION ART 29.4.7

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

TREATY ON EUROPEAN UNION ART 4(3)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288(4)(4)

EUROPEAN COUNCIL DECISION 25.3.2011 ART 3

1 1. This application for judicial review of certain statements and utterances of the Referendum Commission ("the Commission") raises difficult and profound questions concerning the role of the courts in the referendum process. This application has been brought by a Dáil Deputy for Donegal South West, Pearse Doherty. Deputy Doherty is the Sinn Féin spokesman on Finance and he was a prominent campaigner on the "No" side in the referendum which was held on 31st May 2012 in respect of the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union) Bill 2012 ("the Fiscal Stability Treaty referendum").

2 2. At about 12.30pm on 29th May, 2012, counsel on behalf of Deputy Doherty, Mr. Humphreys S.C., moved the court for an application for leave to apply for judicial review in respect of certain statements and utterances issued by the Commission. Having listened to Mr. Humphreys' submission for perhaps the best part of an hour and a half or thereabouts, I took the view that the Commission was a body corporate and, therefore, struck out the proceedings so far as it concerned the Chairman of the Commission, Mr. Justice Feeney who had been named on the pleadings as a co-respondent. I will presently set out in more detail the reasons for that conclusion, but it suffices to say that no issue was thereafter raised about the status of the Commission as a juristic person and the striking out of Mr. Justice Feeney as a co-respondent had no bearing whatever on the course of the proceedings.

3 3. In the course of that original application for leave I also took the view that Deputy Doherty's contention regarding the vires of the Commission in respect of comments which it made about the European Stability Mechanism were not well founded and I again struck out this aspect of the proceedings. I will give reasons for that conclusion in the course of this judgment.

4 4. So far as the balance of the application was concerned, I concluded that it raised profound and very difficult questions, which at their heart involved complex and intricate issues in relation to constitutional law, European Union law, international law, the role of the courts in the referendum process, the judicial power to supervise the Commission, the method of treaty ratification, the role of the Government in treaty ratification and the role of the Houses of the Oireachtas in respect of treaty ratification generally and more specifically in relation to treaties with what can be loosely called a European Union dimension. I therefore adjourned the application for leave until 8pm later that evening so that the Commission could be placed on notice. I also invited the applicant to send a courtesy copy of the...