Category: Irish cases

It’s not everyday that the prospect of an action in the Irish High Court makes worldwide headlines. But a case about the mechanism by which a member state can depart from the European Union is doing just that.

The background lies in last June’s referendum in the United Kingdom, in which the majority voted leave the EU. As a matter of European law, the departure process is provided in Article 50 of the Treaty on European Union. The UK Prime Minister, Theresa May, has stated repeatedly that she wants to begin this process before the end of March next year, and the House of Commons on Wednesday voted to approve this timetable.

The Article 50 process is a recent enough creation. It was inserted into the Treaty by the Treaty of Lisbon in 2007, and it came into force in 2009. It provides that a departing state must notify the European Council of its intention to leave; and it gives the EU and the departing state two years to negotiate the departure arrangements. But the departure of a state from the EU hasn’t happened before; so we are in uncharted waters, both politically and legally; and ambiguities in the text of Article 50 don’t help.

It is not clear, for example, what form the notice to the European Council must take. Neither is it clear whether the two year process can be suspended, or whether a state which has started the process can change its mind and stop the withdrawal process. Nor is it clear what impact withdrawal from the EU would have on the withdrawing state’s relationships with other European bodies, such as the European Economic Area (the EEA). Where a matter of EU law is unclear, the Court of Justice of the European Union (the CJEU) in Luxembourg is the only authoritative source of a binding answer. And Article 267 of the Treaty on the Functioning of the European Union provides a mechanism by which a national court dealing an issue of EU law can seek a preliminary ruling from the CJEU. So, any party to a case raising an unclear issue of EU law, such as Article 50, can ask the court to refer that issue to the CJEU.

The plaintiffs seeking a reference from the High Court to the CJEU about the meaning of Article 50 are likely to be Members of the European Parliament for various UK constituencies [a draft statement of claim is here (pdf)], possibly including some from Northern Ireland. It’s constitutional litigation, but really the continuation of politics by other means. Nevertheless, the sight of politicians making constitutional arguments about political grievances is not an unusual one in Irish courts.

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It is a rare provision of a Treaty, or a constitution, or an Act, that achieves fame or notoriety simply by means of its number. The First Amendment is so famous the world over that we do not need to be told that it is a clause in the Bill of Rights to the US Constitution. Section 31 was once just as notorious in Ireland. Rapidly joining this pantheon is Article 50. It is an Article of the Treaty on European Union, inserted by the Treaty of Lisbon, to provide a mechanism by which a Member State may withdraw from the EU. It has been plucked from the obscurity of an EU Treaty and thrust into the glare of worldwide headlines by the UK referendum on 23 June 2016 in which the majority of participants voted to leave the EU.

The interpretation of Article 50 has provoked much political and legal discussion, but little consensus. Indeed, I have commented twice on this blog (here and here) on the question whether a notice served by the UK under that Article may be suspended or withdrawn. Only the Court of Justice of the European Union (CJEU) can answer that question authoritatively. Writing in today’s Irish Times, Jolyon Maugham QC of Devereux Chambers, London, makes an intriguing suggestion as to how the CJEU might come to provide that answer:

Ireland, do the UK a favour: refer Brexit to Europe

A legal decision that article 50 is revocable would allow for change of mind about leaving

… In a wide ranging interview with London’s Financial Times, Koen Lenaerts [President of the CJEU] observed there are “many, many different ways” that Brexit could end up before him. … if the UK courts will not refer the revocability of article 50 to the European Court, might the Irish courts? They could and they should.

[links and emphasis added]

Apart from the political and practical concerns with this suggestion, there are at least two big legal questions here – Maugham’s “could”, and Maugham’s “should”. As to “could”, how could the Irish courts come to make a reference to the CJEU on the issue of the revocability of Article 50? What is the nature of the case that poses the question? What are the facts that compel the High Court in Dublin to make the reference? Who are the parties (plaintiff(s) and defendant(s))? What is the plaintiff’s cause of action? What remedies does the plaintiff seek? One of the many lessons of Re McCord [2016] NIQB 85 (28 October 2016) and R (Miller and dos Santos) v Secretary of State for Exiting the European Union (Rev 1) [2016] EWHC 2768 (Admin) (03 November 2016) is: cometh the hour, cometh the cases. I can see the outlines of at least four possible cases; doubtless there are others; [update: a potential fifth, which is already before the courts, was drawn to my attention on twitter here and here]; indeed, if a case in the High Court does end up making a reference to the CJEU, I would not be at all surprised if it were to be founded upon an entirely different set of facts. (more…)

In Brown v Allen 344 US 443, 540 (1953), Robert H Jackson, Chief Prosecutor at Nuremburg and Associate Justice of the Supreme Court of the United States said of that Court:

We are not final because we are infallible, but we are infallible only because we are final.

Supreme Courts’ quality of finality, on matters of the gravest import, fascinates observers; and, giving us a chance to go behind that finality closer to home, Ruadhán Mac Cormaic (@RuadhanIT) has an excellent series of articles on the Irish Supreme Court in the Irish Times. Here (with some added links and a few comments) is a flavour of his coverage over the last few days.

Inside Ireland’s Supreme Court: “… Nearly all judges resist labels such as liberal or conservative, pro-State or pro-plaintiff and dismiss attempts to extrapolate from their background a predisposition to decide a case a certain way. …”. Nevertheless, it is a persistent trope amongst watchers of the US Supreme Court (and of the UK courts, though perhaps less so), and it is likely to become so for the Irish Supreme Court as well, if the planned Court of Appeal allows the Supreme Court to become more of a constitutional court in the mo(u)ld of its US counterpart.

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In McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012), the Supreme Court’s per curiam established that the respondents had expended public moneys on a booklet, website, and advertising campaign in relation to a referendum in a manner which was not fair, equal, impartial or neutral. In judgments handed down on 11 December 2012 by Denham CJ, Murray J, Fennelly J, and O’Donnell J (Hardiman J concurring with all four) the Court gave reasons for the conclusions which had been expressed in the per curiam. My analysis of these judgments is in two parts. The first part, in my previous post, considered some of the issues raised in the judgments. The second part, in this post, considers the impact which those judgments have on the issues raised in my earlier posts (I, II, III, IV, V, VI).

From my previous post, it is clear that, in McCrystal, the Supreme Court made two main findings. First, where the Government acts in clear disregard of the Constitution, then the Courts can intervene. Second, arising from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), there is an obligation upon the Government, if it wishes to expend money providing information in relation to a referendum, to do so in a manner that is fair, equal, impartial and neutral. On the facts, the appellant established, on the balance of probabilities, that the Government had acted in clear disregard of its McKenna obligations in undertaking expenditure on a partisan booklet, website and advertising campaign.

In my earlier posts on the McCrystal per curiam, I parsed not only the judgments of the Supreme Court in McKenna, but also the discussion of McKenna in subsequent cases like Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61, [1996] IESC 6 (12 June 1996) and Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1, [2000] IESC 44 (26 January 2000). In McCrystal, however, the members of the Supreme Court contended themselves with analysis simply of McKenna, without reference to its treatment in subsequent cases. Hence, neither Hanafin ror Coughlan is referred to in any judgment except O’Donnell J’s, whose reference to Coughlan is fleeting ([1]) and to Hanafin is for a very specific purpose and not for what it says about McKenna ([1], [40]).

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Regular readers of this blog will be familiar with my series of five posts so far (I, II, III, IV, V) on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants’ expenditure of public moneys on a website, booklet and advertisements in relation to the children’s referendum was in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In the per curiam on 8 November last, the Court announced its decision, and said that judgments would be delivered on 11 December 2012. And, indeed, they duly were – judgments were delivered by Denham CJ, Murray J, Fennelly J, and O’Donnell J; Hardiman J concurred with all four. These judgments have already been the subject of a post by Paul McMahon on Ex Tempore blog, as well as a great deal of media comment (98fm | Belfast Telegraph | Irish Examiner | Irish Independent here, here, here and here | Irish Times here, here, here, here and here | RTÉ | TV3). My analysis will be in two parts. The first part, in this post, considers some of the issues which arose in the Court’s judgments. The second part, in the next post, considers the impact which those judgments have on issues raised in my previous posts.

In my first post on the per curiam, I suggested that the Supreme Court had given themselves five weeks to prepare their judgments because some rather knotty issues needed to be teased out, and I therefore anticipated that there would be substantial judgments. And so there are, four of them, rich, complex, and deserving of careful study. I also suggested that we could not exclude the possibility of a dissenting judgment; but, in the event, the judgments are unanimous. However, the fact that the decision is unanimous doesn’t mean that it was easy; for example, Fennelly J reached his conclusions “with reluctance” ([71], misnumbered [28]).

There are repeated references in the judgments in McCrystal, and in public commentary, to the “the McKenna principles”, deriving from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), as though it were certain what those principles are. As O’Donnell J put it, “the decision of the Supreme Court in the McKenna case is well known” ([3]); but, in my view, it is not so well understood. In my previous posts, especially the second and third, I considered that the so-called McKenna principles are far from clear, and I therefore hoped that the judgments in McCrystal would provide some greater clarity. To the extent that there are four judgments, with differing emphases, there are limits to what clarity may be provided, but some aspects of McKenna have indeed been cleared up by McCrystal.

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In four previous posts, I looked at the Supreme Court’s per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum, in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In particular, in the fourth, I considered the range of remedies which might be available for breach of that prohibition. I noted in that post that Part IV of the Referendum Act, 1994 (also here) provides for Referendum Petitions to challenge the conduct of a referendum. It comes as no surprise to learn that this procedure has now been invoked against the outcome of the referendum held on 10 November 2012 (Irish Examiner | Irish Independent | Irish Times | RTÉ | TheJournal.ie here and here | TV3). I expect the application to fail, but it has many interesting features which give it a fighting chance.

According to section 40 of the Act (also here), the referendum returning officer must aggregate the returns from all of the local returning officers, prepare and sign a provisional referendum certificate recording the votes and outcome in the referendum, and publish a copy of that provisional certificate in Iris Oifigiúil (the twice-weekly official Irish State gazette). This certificate was duly published in Iris Oifigiúil for Tuesday 13 November 2012, at pp1657-1659 (pdf).

According to section 42 of the Act (also here), the papers to commence a petition to challenge the provisional referendum certificate must be lodged with the High Court “not later than seven days after the publication in Iris Oifigiúil of the certificate”. This means that the papers for a petition in respect of the certificate gazetted on 13 November must be lodged on or before 20 November – today. Just ahead of this tight deadline, two intending petitioners made the necessary application yesterday. Mr Justice Iarfhlaith O’Neill directed that the State be placed on notice of the application, and he returned the matter to next Tuesday. Meantime, those behind the challenge are gathering their forces, and preparing their arguments.

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This is my fourth and final post on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In my first post, I looked at the background to the per curiam. In my second post, I explored exactly what was forbidden by McKenna, and concluded that it prohibits intentional partisan government expenditure. In my third post, I concluded that the precise constitutional basis for that prohibition is that such expenditure is undemocratic, unfair, unbalanced, unequal or partial, and that it may be restrained because it therefore violates the right to an equal franchise (see also the posts here by Paul McMahon and here by Laura Cahalane, and this assessment by Conor O’Mahony). In this post, I want to look at the remedies which might be available to a citizen for breach of that right.

In McCrystal, the Court granted a declaration that the respondents had acted wrongfully in spending public money on a partisan website, booklet and advertising campaign in relation to the referendum. That declaration is itself a remedy, and the Court was unwilling to go beyond it and grant an injunction against the material. In the words of the per curiam, the Court did “not consider it either appropriate or necessary to grant an injunction”. The Court’s traditionally strong understanding of the doctrine of separation of powers is such that they are often unwilling to do more than to grant a declaration against the executive (see, eg, TD v Minister for Education [2001] 4 IR 259, [2001] IESC 101 (17 December 2001)). This is often sufficient. For Barrington J in Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996), it was important to emphasise that, once the Supreme Court in McKenna had declared the unconstitutional impropriety, that provided the remedy: the “Government immediately acknowledged itself in the wrong and wound down its advertising campaign”. O’Flaherty J made a similar observation. And Denham J also took pains to point out that the Supreme Court had provided a remedy in McKenna.

There is, however, more than a hint in the McCrystal per curiam that if the government had not taken down the website and ceased distributing and publishing the material, then it might have become appropriate and necessary to grant an injunction. Of course, the government took the hint. But it does mean that, whilst the primary remedy for a breach of the McKenna prohibition would seem to be a declaration that the partisan expenditure is unconstitutional, an injunction to restrain that expenditure could be available where appropriate and necessary.

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In previous posts, I noted that the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here) held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), and I explored exactly what was forbidden by the McKenna prohibition on intentional partisan government expenditure (see also the posts here by Paul McMahon and here by Laura Cahalane). In this post, I want to consider the constitutional basis for the that prohibition.

There is a strong strain of democracy running through the majority judgments both in McKenna and in its companion case Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996). For example, in McKenna, Hamilton CJ held:

The role of the People in amending the Constitution cannot be over-emphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone. … no interference with that process can be permitted because as stated by Walsh J in … [Crotty v An Taoiseach [1987] IR 713, [1987] IESC 4 (9 April 1987)] “it is the people themselves who are the guardians of the Constitution”.

As the guardians of the Constitution and in taking a direct role in Government either by amending the Constitution or by refusing to amend, the people by virtue of the democratic nature of the State enshrined in the Constitution are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.

The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994 but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures. …

The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.

Denham J’s approach was even stronger – where the Chief Justice contented himself with the integrity of the democratic process, she conjured up a constitutional right to a democratic process in referenda:

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