THE SUPREME COURT
Appeal No. 437/2009
Ireland, The Attorney General, and Maurice Coughlan the Referendum Returning Officer
Judgment of the Court delivered on the 9th day of May, 2016 by Denham C.J.
1. This is an appeal by Harry Rea, the applicant/appellant, referred to as “the applicant”, from the order of the High Court (Ryan J.), made on the 12th October, 2009, and perfected on the 23rd October, 2009, which refused his ex parte application.
2. The applicant sought a court order that the result of the second Lisbon Treaty Referendum taken on the 2nd October, 2009, should be declared null and void.
3. As the application was made ex parte to the High Court, there was no legitimus contradictor in the High Court. However, this Court requested Ireland, the Attorney General, and Maurice Coughlan, the Referendum Returning Officer, the respondents, and referred to as “the State”, to make submissions to this Court on the appeal.
The High Court
4. In this case the applicant brought a motion to the High Court seeking leave to present “a challenge to the constitutionality of the 28th Amendment to the Constitution (2009) Bill”, seeking the following reliefs, which were set out in paragraph D of the Statement grounding the application for judicial review:-
5. The motion was refused in the High Court. The terms of the learned High Court judge’s ex tempore judgment are set out in a report, as follows:-
(i) A declaration that the result of the Referendum taken on the 2nd October, 2009 should be declared null and void
(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 appellant Mr. Rea was one of four persons who applied for leave to bring judicial review proceedings in respect of the referendum on the Lisbon Treaty. All the applications were heard together and my judgment was ex tempore.
Mr. Rea sought four declarations which are set out at para. D of the statement grounding application for judicial review. There now appears another application, listed at para. C - A) and B) of the same document. I believe that this para. C material was not in the document that was before me on the 12th October, 2009, and was inserted subsequently. This may have been for an application on the following day. (The applicants came to my court again on the 13th October, with a new application but I was not free to hear the matter). The application that Mr. Rea made to me on the 12th October was for the relief listed at para. D) only. This is confirmed by the order, which was later amended on the application of Mr. Rea, but not in regard to the note of the reliefs that were sought and refused.
I dealt with the application as if judicial review was an appropriate remedy.
The four applicants used the same grounding statement for their applications but each person used only one part of the document, with the other sections crossed out. Mr. Rea relied on part 4) as his argument for leave.
I refused this and the other applications. The grounds did not disclose any basis for judicial review, in my judgment. The part relied on by Mr. Rea complained about the circumstances that led to the referendum, but did not allege any legally cognisable irregularity or illegality. The grounds were political, not legal. The document is a polemic, not an argument and is directed to the holding of the referendum. My view was that no stateable case had been put forward by Mr. Rea or his fellow applicants. I conveyed these views in the judgment that I delivered when the applicants had presented their cases and I recall specifically saying that the complaints (by which I meant each of them including Mr. Rea’s) were political and not legal and that they did not constitute any basis for an application for judicial review.”
The Supreme Court
6. The applicant 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.
7. His written legal argument included the following:-
Extracts from Crotty v. An Taoiseach  IR 713, were then referred to.
“(i) The ‘Guarantees’ themselves are a usurpation of the sovereignty of the people. The Government has acted beyond its authority by involving the heads of the member states in the EU in their private capacities to create an internationally binding treaty which will affect the fundamental rights of the people and their Constitutional protections WITHOUT obtaining their consent to do so.
(ii) The terms of this new Treaty - with the negotiated terms and conditions set out in the ‘Guarantees’, even though they are to affect the fundamental rights and obligations of the Irish people - were never put to the people for their approval or laid before the Oireachtas and so the Government acted unlawfully. In doing this the State has alienated its duty to a foreign body - the Council of Ministers - and in the process has usurped the sovereign power of the people to decide their own destiny.
(iii) According to the Referendum Commission’s public information … leaflet and the legal opinion of the SC Rossa-Phelan …, the ‘Guarantees’ clearly amount to a Foreign Policy Treaty. The ‘Guarantees’ relating to protections of the unborn, the Family founded on Marriage and Parental Rights regarding the educational welfare of their children do not and will not form any part of our domestic Constitution. They will not be voted on by the people and will not therefore be inserted into the Constitution even though they affect the Government of the country. A petitioner to the Supreme Court can not therefore rely on the ‘Guarantees’ to seek to have the State respect their rights.
(iv) The Crotty judgment … established beyond any doubt that such an act amounts to an alienation of Foreign Policy and is impermissible under the Constitution. Regardless of the nature of this International Treaty, even if it is argued that it is in the interests of the Irish people, the people are being asked in this Referendum, through the wording of the amendment to approve of the Government having done something which their Constitution does not allow.”
“(v) 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.”
8. As stated, at the request of the Court, the State filed written submissions for the Court.
9. The Court heard oral submissions from the applicant, and from counsel on behalf of the State.
Challenge to Referendum
10. In effect the applicant seeks to challenge a referendum. However, there is a specific legal process for challenging a referendum. An applicant may present a petition pursuant to s. 42 of the Referendum Act, 1994, as amended, in respect of a referendum. There are specific requirements, including temporal, for such an application. This appeal before the Court is not from such an application.
11. Before the Court is an appeal from a refusal of the High Court to grant leave to appeal by way of judicial review.
12. 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.
13. Proceedings were not before the Court under the procedures provided for in the Referendum Act, 1994, as amended.
14. These judicial review proceedings are, in effect, a collateral attack on the said referendum, which is not feasible.
15. The applicant has raised in his submissions the argument that the Protocol required a referendum.
16. 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:-
This Protocol, as do the others, respects the Constitution of Ireland. The Supreme Court of Ireland has the duty and obligation to interpret and apply the Constitution of Ireland.
“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.”
17. The Court is satisfied that it is for the Supreme Court of Ireland to interpret the Constitution of Ireland.
18. The Court understands 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.
19. This is an appeal from a refusal of the High Court to grant leave to apply for judicial review. In essence, it is a collateral attack upon the second Lisbon Treaty by way of an application for leave to appeal by way of judicial review.
20. In all the circumstances, the Court would not interfere with the order of the High Court. Consequently, the appeal will be dismissed.
21. Further, the Court makes no order as to costs.