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

Date01 January 2010
AuthorMaria Scott
The House that the Supreme Court Built:
The Rulings in Coughlan and McKenna,
the Lisbon Treaty and the Constitutional
Referendum in Ireland
“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
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and a turnout of 71%,5which is superseded only by the turnout recorded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),, 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.
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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. public_opinion/archives/eb/eb71/eb71_en.htm, accessed on 16 September,
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,, accessed on 18
August, 2009.
10 Department of Foreign Affairs/Millward Brown IMS, Post Lisbon Treaty Referendum
Research Findings, 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.
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