The High Court has refused a challenge brought by Donegal South West TD Pearse Doherty to statements made by the Referendum Commission shortly before the Fiscal Stability Treaty referendum.
Doherty, Sinn Féin's finance spokesman and a prominent No campaigner, moved for judicial review on 29 May 2012, two days before polling. He challenged Commission comments about Ireland's ability to withhold approval of a European Union treaty amendment connected with the European Stability Mechanism.
Mr Justice Hogan declined to reject the case solely because of its late timing, saying the constitutional and European law questions raised were sufficiently important to consider.
The court first held that the Referendum Commission itself had legal personality and could be sued, making it unnecessary to retain its chairman, Mr Justice Kevin Feeney, as a separate respondent. Hogan J also rejected an argument that the Commission had acted outside its powers by discussing the European Stability Mechanism, finding it was closely connected with the treaty proposal before voters.
More significantly, the judge held that statements made by the Commission were capable of judicial review. However, intervention would require an exceptional case where a statement was plainly wrong or manifestly inaccurate or misleading and likely materially to affect the referendum result.
The disputed issue concerned whether the Government retained power to refuse final approval of an EU treaty amendment after Ireland had already agreed to the European Council decision establishing the process. Hogan J found that competing arguments advanced by Doherty, the Commission and the Attorney General raised unresolved questions of EU and constitutional law.
He said a definitive answer could require a reference to the Court of Justice of the European Union.
Because legitimate legal debate remained possible, the court could not find the Commission's statements plainly wrong or materially misleading. Doherty's application was therefore refused.