SF High Court Challenge turned down

Scofflaw · 30-05-2012 10:34AM #1

THE HIGH COURT has refused an application by Pearse Doherty seeking a declaration that the Referendum Commission made a misleading statement, when it suggested that Ireland had already foregone its opportunity to veto the establishment of the European Stability Mechanism.

In an oral ruling, Mr Justice Gerard Hogan refused Doherty’s argument that the government still had the power to opt not to refer the necessary measures to the Dáil, despite having already agreed to them at European Council level.

http://www.thejournal.ie/high-court-ruling-pearse-doherty-referendum-commission-468476-May2012/?utm_source=shortlink

The judgement here is actually about whether the Referendum Commission was wrong in stating that to be the case, and the refusal is fundamentally a rejection of Sinn Fein's claim that they were wrong.

More broadly, this comes down, again, to the question of "good faith" at the negotiating table. The government, should it simply decide not to refer the necessary measures to the Dáil, could no longer be trusted in future negotiations by the other parties negotiating.

cordially,
Scofflaw

beeftotheheels · 30-05-2012 10:40AM

Do you think it will make any difference?

Hogan held that the argument involved aspects of domestic, international and EU law, so novel, that the CJEU would need to rule on it. As such there is no way SF can prove that the RC was wrong in its statement.

No doubt SF will now be out claiming that the High Court didn't find that the RC was right.

Bits_n_Bobs · 30-05-2012 10:45AM

Will SF have costs awarded against them?

carveone · 30-05-2012 10:49AM

Replacing diplomacy with brinkmanship is the path to isolation. Not for nothing are they called 'We Ourselves'

PopeBuckfastXVI · 30-05-2012 10:50AM

beeftotheheels wrote: »

No doubt SF will now be out claiming that the High Court didn't find that the RC was right.

Too late for that, but they will be hoping they muddied the waters sufficiently on the eve of the referendum.

seamus · 30-05-2012 11:02AM

PopeBuckfastXVI wrote: »

Too late for that, but they will be hoping they muddied the waters sufficiently on the eve of the referendum.

I think that was the aim, but it's failed now. They wanted the high court to rule that RefCom had given conflicting and confusing statements, then before there was a chance to discuss or debate it, the moratorium would kick in.

Instead it's blown up in their face and SF look like they've just been slinging mud.

Ozymandius2011 · 30-05-2012 11:03AM

This ruling does not mean we cannot block the ESM at Oireachtas level. Judge Hogan refers to the govt’s obligations to the EU. However he does not rule on whether the Oireachtas can block ratification. So there remains uncertainty and it would be foolish for us to commit to something permanently without sufficient clarity. If I were SF I would emphasise the element of the ruling that is somewhat in their favour – that themodalities of ratification of the ESM are unclear and so it may still be possible for the oireachtas to block the ESM. The term “veto” and “block” are different for the purposes of this case. Judge Hogan appears to be taking a very narrow interpretation of the term “veto” as applying only to governments, while saying he cannot rule on the question of how the ESM Treaty is ratified or otherwise. So there remains uncertainty here.

oscarBravo · 30-05-2012 11:08AM

PopeBuckfastXVI wrote: »

Too late for that, but they will be hoping they muddied the waters sufficiently on the eve of the referendum.

Ozymandius2011 wrote: »

If I were SF I would emphasise the element of the ruling that is somewhat in their favour – that themodalities of ratification of the ESM are unclear and so it may still be possible for the oireachtas to block the ESM.

Looks like you've hit the nail on the head, your holiness.

oscarBravo · 30-05-2012 11:10AM

Ozymandius2011 wrote: »

However he does not rule on whether the Oireachtas can block ratification. So there remains uncertainty...

Of course the Oireachtas can block ratification: it could vote not to ratify. But the government has an overall majority in the Oireachtas, so it's not going to block ratification.

I believe Scofflaw has used the word "Jesuitical" a number of times lately - I think that's a kind way of describing what you're doing here.

PopeBuckfastXVI · 30-05-2012 11:19AM

Also correct me if I'm wrong, but isn't all this arguing about the government being able to do something they absolutely will not do? Something that's related to a different treaty?

We have the worst f***** politicians...

Ozymandius2011 · 30-05-2012 11:24AM

oscarBravo wrote: »

Of course the Oireachtas can block ratification: it could vote not to ratify. But the government has an overall majority in the Oireachtas, so it's not going to block ratification.

I believe Scofflaw has used the word "Jesuitical" a number of times lately - I think that's a kind way of describing what you're doing here.

but if we fail to ratify the F.C., it's hard to imagine even this govt would cut off its nose to spite its face by ratifying an exclusion of Ireland from the ESM fund for refusing ratification of the F.C. It would amount to economic and political self-flaggelation.

PopeBuckfastXVI · 30-05-2012 11:28AM

Ozymandius2011 wrote: »

but if we fail to ratify the F.C., it's hard to imagine even this govt would cut off its nose to spite its face by ratifying an exclusion of Ireland from the ESM fund for refusing ratification of the F.C. It would amount to economic and political self-flaggelation.

Your theory rests on the premise the the ESM has no benefit to Ireland beyond as a source of funding. This premise is not true, it's in Irelands interest for the ESM to be available to other countries which may struggle and impact our economy by default. Ireland will ratify that treaty, and rightly so, for the same reason as all the other countries who do not expect to borrow from it.

Your premise is false, your theory falls.

oscarBravo · 30-05-2012 11:32AM

Ozymandius2011 wrote: »

but if we fail to ratify the F.C., it's hard to imagine even this govt would cut off its nose to spite its face by ratifying an exclusion of Ireland from the ESM fund for refusing ratification of the F.C. It would amount to economic and political self-flaggelation.

You're openly advocating that the government consciously renege on a treaty that it signed in good faith.

That's a disgraceful thing to advocate, and you should be ashamed of yourself.

Ozymandius2011 · 30-05-2012 11:34AM

oscarBravo wrote: »

You're openly advocating that the government consciously renege on a treaty that it signed in good faith.

That's a disgraceful thing to advocate, and you should be ashamed of yourself.

This govt wouldn't know good faith if it poked them in the eye. Remember "Labour's way or Frankfurts way"? Remember restoring services to Sligo General Hospital? Plz.... :rolleyes: No govt has a right to sell Ireland down the river and then force the Irish people to go along with it based on "good faith".

Your theory rests on the premise the the ESM has no benefit to Ireland beyond as a source of funding. This premise is not true, it's in Irelands interest for the ESM to be available to other countries which may struggle and impact our economy by default. Ireland will ratify that treaty, and rightly so, for the same reason as all the other countries who do not expect to borrow from it.

Your premise is false, your theory falls.

That's debatable. It's arguable that the ESM and F.C. copperfasten austerity, thereby prolonging their respective recessions by deflation.

beeftotheheels · 30-05-2012 11:36AM

oscarBravo wrote: »

You're openly advocating that the government consciously renege on a treaty that it signed in good faith.

And based on what the judge said risk being taken to Court into the bargain since he didn't think it clear that they could do this.

PopeBuckfastXVI · 30-05-2012 11:47AM

Ozymandius2011 wrote: »

oscarBravo wrote: »

You're openly advocating that the government consciously renege on a treaty that it signed in good faith.

That's a disgraceful thing to advocate, and you should be ashamed of yourself.

This govt wouldn't know good faith if it poked them in the eye. Remember "Labour's way or Frankfurts way"? Remember restoring services to Sligo General Hospital? Plz.... :rolleyes: No govt has a right to sell Ireland down the river and then force the Irish people to go along with it based on "good faith".

Your theory rests on the premise the the ESM has no benefit to Ireland beyond as a source of funding. This premise is not true, it's in Irelands interest for the ESM to be available to other countries which may struggle and impact our economy by default. Ireland will ratify that treaty, and rightly so, for the same reason as all the other countries who do not expect to borrow from it.

Your premise is false, your theory falls.

That's debatable. It's arguable that the ESM and F.C. copperfasten austerity, thereby prolonging their respective recessions by deflation.

ESM copperfastens austerity? If that's arguable I'd love to see you try! Next you'll be banging on about it being a ponzi scheme or whatever other nonsense you've read in the ULA rhetoric phrase book!

Scofflaw · 30-05-2012 11:50AM

beeftotheheels wrote: »

Do you think it will make any difference?

Hogan held that the argument involved aspects of domestic, international and EU law, so novel, that the CJEU would need to rule on it. As such there is no way SF can prove that the RC was wrong in its statement.

No doubt SF will now be out claiming that the High Court didn't find that the RC was right.

Very much so - that argument is now being plugged in multiple places, in some cases using Ozzy's argument verbatim...

amused,
Scofflaw

View · 30-05-2012 11:54AM

Ozymandius2011 wrote: »

but if we fail to ratify the F.C., it's hard to imagine even this govt would cut off its nose to spite its face by ratifying an exclusion of Ireland from the ESM fund for refusing ratification of the F.C.

No, it is very easy to imagine particularly since our government had a "veto" to stop a linkage between the ESM and Stability Treaty and choose NOT to use it already (i.e. the government agreed to sign the Treaties with the linkage being there when they had an absolute right to refuse to do so).

Ozymandius2011 wrote: »

It would amount to economic and political self-flaggelation.

Nope, it would amount to honoring our political commitment to "an ever closer union" as approved by the people in a referendum.

Ozymandius2011 · 30-05-2012 12:11PM

View wrote: »

No, it is very easy to imagine particularly since our government had a "veto" to stop a linkage between the ESM and Stability Treaty and choose NOT to use it already (i.e. the government agreed to sign the Treaties with the linkage being there when they had an absolute right to refuse to do so).

Nope, it would amount to honoring our political commitment to "an ever closer union" as approved by the people in a referendum.

If that were true we wouldn't need a parliament. What you are advocating is essentially that the Oireachtas should be a rubber-stamp where international treaties are concerned. I reject that concept and regard it as elitist since it maximilises the power of governments at the expense of national parliaments, which are elected to represent their constituents - not simply their governments.

As for "ever closer union" that was contained in preambles, and they have less legal value than the body of the treaty. Michael Noonan acknowledged recently that there is precedent for the ECJ holding to this. Furthermore, the term "ever closer union" is open to interpretation e.g. ever closer cultural links, friendship, trade, etc.

PopeBuckfastXVI · 30-05-2012 12:15PM

Ozymandius2011 wrote: »

If that were true we wouldn't need a parliament. What you are advocating is essentially that the Oireachtas should be a rubber-stamp where international treaties are concerned. I reject that concept and regard it as elitist since it maximilises the power of governments at the expense of national parliaments, which are elected to represent their constituents - not simply their governments.

I reject your argument and regard it as elitist since it maximises the power of a small anti EU minority within the Oireachtas at the expense of the vast majority, which are elected to represent their constituents.

Out of curiosity, how do you think governments come into power, if not through consent of the Dáil?

Ozymandius2011 · 30-05-2012 12:20PM

PopeBuckfastXVI wrote: »

I reject your argument and regard it as elitist since it maximises the power of a small anti EU minority within the Oireachtas at the expense of the vast majority, which are elected to represent their constituents.

Out of curiosity, how do you think governments come into power, if not through consent of the Oireachtas?

True but they are like a board of directors in that they are accountable to their shareholders/voters. Getting into office is not and should be a blank cheque. In this respect the Constitution is the memorandum of association of Irish democracy, and as directors of the nation the politicians are bound by it.

PopeBuckfastXVI · 30-05-2012 12:24PM

Ozymandius2011 wrote: »

True but they are like a board of directors in that they are accountable to their shareholders/voters. Getting into office is not and should be a blank cheque. In this respect the Constitution is the memorandum of association of Irish democracy, and as directors of the nation the politicians are bound by it.

Yes they are, and if you can show they are conflicting with the Constitution I'm sure Pearse Doherty would love a word with you.

So you accept that the Dáil elect the government, but feel that it's somehow repugnant that the Dáil, as a demos, might share the views of the government it elects, and support it when asked?

I don't know how you can square that circle to be honest.

Ozymandius2011 · 30-05-2012 12:31PM

PopeBuckfastXVI wrote: »

Yes they are, and if you can show they are conflicting with the Constitution I'm sure Pearse Doherty would love a word with you.

So you accept that the Dáil elect the government, but feel that it's somehow repugnant that the Dáil, as a demos, might share the views of the government it elects, and support it when asked?

I don't know how you can square that circle to be honest.

I don't accept that national parliaments should meekly accept a govt's every whim/decision/bill. The govt wanted the Irish Parliament to vote for the Act of Union in 1800 too. Are you saying that was right on grounds of "good faith"?

PopeBuckfastXVI · 30-05-2012 12:31PM

Scofflaw wrote: »

Very much so - that argument is now being plugged in multiple places, in some cases using Ozzy's argument verbatim...

amused,
Scofflaw

Just saw this on the local news facebook page

By refusing to even consider the application, have the High Court breached its own Constitutional obligations to be impartial?

It seems now the High Court has joined the conspiracy...

PopeBuckfastXVI · 30-05-2012 12:34PM

Ozymandius2011 wrote: »

I don't accept that national parliaments shouls meekly a govt's every whim/decision/bill. The govt wanted the Irish Parliament to vote for the Act of Union in 1800 too. Are you saying that was right on grounds of "good faith"?

You've misunderstood. I'm not saying that the should, I'm saying that it's unsurprising when they do. They are the body that elects the government, even if you ignored parties, the chances are the government they elect will most likely mirror the wishes of the majority, and therefore policy made by the government will mirror those wishes, and therefore when that policy is put back to the body, the majority will vote in favour of that policy.

When you bring the party whip system in it's even more obvious that that is what will happen. I don't know how you propose to change that fundamental reality of the situation, aside from giving more power to anti-government deputies, but then that wouldn't be exactly democratic.

Like I said, I don't know how you can square the circle.

Scofflaw · 30-05-2012 12:56PM

Ozymandius2011 wrote: »

I don't accept that national parliaments should meekly accept a govt's every whim/decision/bill. The govt wanted the Irish Parliament to vote for the Act of Union in 1800 too. Are you saying that was right on grounds of "good faith"?

The parliament doesn't have to accept the government's view at all - nor, obviously, do the people at referendum, and neither the parliament nor the people are acting in bad faith by refusing. The government proposes, and the people, or parliament, disposes - the "proposes" bit is the good faith.

A government is obviously entitled to go back to the negotiating table with a parliamentary or referendum refusal and say "I tried, but..." without being accused of bad faith.

cordially,
Scofflaw

Ozymandius2011 · 30-05-2012 12:59PM

PopeBuckfastXVI wrote: »

You've misunderstood. I'm not saying that the should, I'm saying that it's unsurprising when they do. They are the body that elects the government, even if you ignored parties, the chances are the government they elect will most likely mirror the wishes of the majority, and therefore policy made by the government will mirror those wishes, and therefore when that policy is put back to the body, the majority will vote in favour of that policy.

When you bring the party whip system in it's even more obvious that that is what will happen. I don't know how you propose to change that fundamental reality of the situation, aside from giving more power to anti-government deputies, but then that wouldn't be exactly democratic.

Like I said, I don't know how you can square the circle.

The problem with that argument is that the F.C. treaty never even existed at the last GE so the govt has no mandate to ratify, nor to claim to speak for public opinion on that treaty.

beeftotheheels · 30-05-2012 01:04PM

Ozymandius2011 wrote: »

The problem with that argument is that the F.C. treaty never even existed at the last GE so the govt has no mandate to ratify, nor to claim to speak for public opinion on that treaty.

This again? By this logic if there was a horrific storm tomorrow (unforeseen at the time of the General Election) the Government would have no mandate to try and deal with the disaster.

We don't get to vote on every single decision a Government makes. We vote for candidates to the Dáil, and once we elect them they form a Government which is empowered by the Constitution to make decisions on our behalf.

oscarBravo · 30-05-2012 01:04PM

Ozymandius2011 wrote: »

The problem with that argument is that the F.C. treaty never even existed at the last GE so the govt has no mandate to ratify, nor to claim to speak for public opinion on that treaty.

They will have that mandate, one way or the other, on Friday morning.

seamus · 30-05-2012 01:05PM

Ozymandius2011 wrote: »

The problem with that argument is that the F.C. treaty never even existed at the last GE so the govt has no mandate to ratify, nor to claim to speak for public opinion on that treaty.

Well the point of the referendum is to obtain such a mandate to ratify...

As for public opinion, since the two parties in Government ran on a pro-EU platform then it stands to reason that the majority public opinion who voted them into power also have a pro-EU stance and as such the Government have a mandate from the public to negotiate EU treaties which are in the best interests of both Ireland and the EU.

So they do indeed have a mandate to speak for public opinion on the treaty because we gave it to them.

In fact, threads you yourself have posted have shown that a significant number of "No" voters are voting in protest at the Government rather than out of an anti-EU sentiment.

Scofflaw · 30-05-2012 01:10PM

beeftotheheels wrote: »

This again? By this logic if there was a horrific storm tomorrow (unforeseen at the time of the General Election) the Government would have no mandate to try and deal with the disaster.

We don't get to vote on every single decision a Government makes. We vote for candidates to the Dáil, and once we elect them they form a Government which is empowered by the Constitution to make decisions on our behalf.

Wait - that means they had no mandate to deal with the snow! So that's what happened - they were constitutionally paralysed...

It's amazing how much people complained, really, considering they didn't give the government a mandate to deal with the snow in the first place.

apologies,
Scofflaw

SF High Court Challenge turned down

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