Attempt to challenge second Lisbon Treaty Referendum through judicial review fails in Supreme Court

The Supreme Court has upheld the High Court’s decision to refuse to grant leave to Harry Rea to apply for judicial review, following Mr Rea’s attempt to seek an order from the High Court that the result of the second Lisbon Treaty Referendum, taken on 2 October 2009, should be declared null and void.

He had also sought:

(ii) A declaration that the Government has acted outside of its constitutional authority by failing to lay the guarantees in front of the Oireachtas

(iii) A declaration that the amendment itself is repugnant to the Constitution as it does not contain the scope and objectives of the application of the Lisbon Treaty to the Irish nation described by the Government and the Referendum Commission as the guarantees when referring to the Presidency conclusions of the Brussels European Council of the 11th - 12th December, 2008.

(iv) A pre-emptive order that the costs of this case and any subsequent judicial review be granted to the applicants and not against them on the basis that this matter is brought in the national interest and not for any personal benefit.

The High Court found that the applicant had not made any stateable case, as he did not allege any legally cognisable irregularity or illegality. The grounds of his application were political, not legal.

Indeed, “the document is a polemic, not an argument and is directed to the holding of the referendum.”

The applicant then filed in the Supreme Court, a statement grounding an application for judicial review, seeking relief in terms similar to the four reliefs sought in the High Court.

In written legal argument, the applicant claimed that the Government had acted beyond its authority, that the terms of the new Treaty were never put to people for approval or laid before the Oireachtas, that the Treaty’s ‘Guarantees’ did not form part of the Constitution, and that the Crotty judgment (Crotty v. An Taoiseach I.R. 713) established beyond any doubt that such an act amounts to an alienation of Foreign Policy and is impermissible under the Constitution.

He concluded: “I therefore say that effectively the people are being led by the Government to betray themselves. If this Referendum result is allowed to stand and precipitate an amendment to the constitution this would set a precedent that this and any future government can enter into International Treaties without the approval of the people. For this reason we believe the Referendum result should be declared null and void.”

The Supreme Court noted that the applicant was seeking to challenge a referendum.

However, it further noted that there was a specific legal process for challenging a referendum, through a petition pursuant to s.42 of the Referendum Act, 1994.

However, what was before the Court was not an appeal of such an application, but an appeal from a refusal of the High Court to grant leave to appeal by way of judicial review.

It was observed that “The Referendum, having been passed by the People, is now part of the Constitution of Ireland. Thus, it has been integrated into the constitutional law of Ireland. As such it has an important status in the State.”

What the proceedings in effect amounted to, was a collateral attack on the referendum, which was not held feasible.

The applicant had raised in his submissions the argument that the Protocol required a referendum.

The Protocol, on the Right to Life, Family and Education, of the decision of the Heads of State on Government of the 27 States of the EU, meeting with the European Council, on the concerns of the Irish People on the Treaty of Lisbon, states:-

“Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice affects in any way the scope and applicability of the protection of the right to life in Articles 40.3.1, 40.3.2 and 40.3.3, the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 provided by the Constitution of Ireland.”

The Court observed that this Protocol respected the Constitution of Ireland.

It further observed that it was satisfied that it was for the Supreme Court of Ireland to interpret the Constitution, and that the power and duty of the Supreme Court of Ireland to interpret the Constitution of Ireland would be respected by institutions of the European Union, including the European Court of Justice.

Concluding, the Court found that “In all the circumstances, the Court would not interfere with the order of the High Court.” Consequently, the appeal was dismissed.

  • by Rachel Killean for Irish Legal News
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