The House that the Supreme Court Built: The Rulings in Coughlan and McKenna, The Lisbon Treaty and The Constitutional Referendum in Ireland

• Date: 01 January 2010
• Author: Maria Scott

The House that the Supreme Court Built:

The Rulings in Coughlan and McKenna,

the Lisbon Treaty and the Constitutional

Referendum in Ireland

MA RIA SCOT T

“It must also be acknowledged that we live as far as referendums are

concerned in the house that the Supreme Court built, especially

regarding the Coughlan and McKenna judgments.”1

Introduction

The repeat polling of the referendum on the Treaty of Nice within eighteen

months of the original referendum was a unique departure in the history of

the Irish Constitution. Not only was this the first time a referendum

pertaining to EU membership had been defeated, it was also the first time

that a referendum had been put to the Irish people twice in succession.2The

Nice experience may have been a novel one but with the defeat of the first

referendum on the Treaty of Lisbon in June 2008 an atypical electoral event

evolved into a pattern, where a knowledge deficit on the part of the

electorate impacted on the result of the referendums more than the issues

in question.

To date there have been eight referendums relating to EU membership in

Ireland. The four referendums polled prior to 2001 all shared a common

trait of a “Yes” vote of over 60%.3Interestingly, the referendum on

accession to the European Communities engendered the highest ever “Yes”

vote in the history of Bunreacht na hEireann (“the Constitution”) at 82%4

and a turnout of 71%,5which is superseded only by the turnout recorded

in the plebiscite enacting the Constitution.

1Barrett, ad dress to the Oirea chtas Joint Committee on the Constitut ion (18

November 2008), http://debates.oireachtas.ie, accessed on 1 September, 2009.

2The issues of divorce and the electoral system had twice been subject to referendums

albeit with at least 9 years between each original and repeat referendum.

3For a full breakdown on referendum results see the Department of the Environment,

Heritage and Local Governmen t, Referendums in Ireland, 1939–2009, http://www.

environ. ie/en/Pu blication s/LocalG overnment/Voting/File DownLoad, 1894,en. pdf,

accessed on 16 September, 2009.

4Ibid, p 23.

5Ibid.

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However, the initial rejection of the Treaties of Nice and Lisbon is not

simply a case of increasing euro-scepticism.6The most recent Euro -

barometer national report on Ireland7shows that Ireland has the fourth

highest level of support for European integration in the European Union

and is well above the European average. Furthermore, in a report published

after the first referendum on the Treaty of Lisbon it was commented that

“The overall positive attitude that Irish people have towards the European

Union contributed substantially to support for the Lisbon Treaty in the

referendum and was indeed the strongest single factor affecting people’s

voting decision.”8

Reports published after the first Treaty of Nice9and after the first

referendum on the Treaty of Lisbon10 have shown that the key factor shared

by both original unsuccessful referendums was a substantial knowledge

deficit on the part of the electorate. A majority of voters who voted “no”

or who purposely abstained from voting in each original referendum cited

a lack of understanding as their main reason.

These knowledge deficits appeared in an environment that has been

shaped by recent decisions of the Supreme Court namely the decisions of

McKenna v An Taoiseach (No 2),11 Crotty v An Taoiseach,12 Coughlan v

Broadcasting Complaints Commission13 and Hanafin v Minister for the

Environment.14 The application of these decisions, in particular McKenna

and Coughlan, has had a significant impact on the manner in which

referendum campaigns are conducted in Ireland.15 This article explores the

causes of these knowledge deficits, the effects of these decisions of the

Supreme Court and the ways in which such significant knowledge deficits

may be avoided in future referendums.

6For further discussion see Cahil l, “Ireland’s Constitutional Ame ndability and

Europe’s Constit utional Ambition: the Lisbon Refer endum in Context” , (2008) 9

German L J 10 pp 3–4.

7European Commission, Eurobarometer 71/Spring 2009 (September 2009), http://ec.

europa.eu/ public_opinion/archives/eb/eb71/eb71_en.htm, accessed on 16 September,

2009.

8UCD Geary Instit ute, Attitudes and Behaviour in the Referendum on the Treaty of

Lisbon (University College Dublin, March 2009), p 1.

9Sinnott, Atti tudes and Behaviour of the Irish Electorate in the Referendum on the

treaty of Nice, http://www.ucd.ie/dempart/workingpapers/nice1.pdf, accessed on 18

August, 2009.

10 Department of Foreign Affairs/Millward Brown IMS, Post Lisbon Treaty Referendum

Research Findings, http://www.dfa.ie/uploads/documents/Pu blications/, accessed on

3 September, 2008.

11 [1995] 2 IR 10 [hereinafter McKenna].

12 [1987] IR 713 [hereinafter Crotty].

13 [2000] IESC 44 [hereinafter Coughlan].

14 [1996] 2 IR 321 [hereinafter Hanafin].

15 For a comprehensive analysis of these cases see Barrett, “Building a Swiss Chalet in

an Irish Legal Landscape? Refer endums on European Union Treaties in Ireland and

the Impact of Supreme Court Jurisprudence” (2009) 5 European Constitutional L R.

220 MAR IA SC OTT

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