Tuesday 20 August 2019

Supreme Court dismisses TD Joan Collins' challenge to €31bn promissory notes decision

Joan Collins
Joan Collins

Aodhan O'Faolain

The Supreme Court has dismissed a challenge by Independent TD Joan Collins to a decision by the Minister for Finance to issue €31bn in promissory notes.

The six judge court unanimously ruled today against Ms Collins core arguments that the notes were unconstitutionally issued.

The Chief Justice, Ms Justice Susan Denham, also remarked this case illustrated choices made by past and current Oireachtas have consequences for the present and the future.

The court has no function considering the wisdom of decisions taken by other branches of government, only the limited capacity to review that judicial review constitutes, she said.

The court’s function was to ensure the constitutional organ which has responsibility to make such decisions, “whether they be wise or foolish, trivial or far reaching”, was allowed to do so within the limits of the Constitution.

“The momentous nature of the decisions made in relation to the crisis which the Irish economy has experienced in recent years, including those made in this case, highlights the importance of each organ of government respecting the field of operation of the other branches, and performing its own functions conscientiously and carefully.”

The promissory notes were security for the Central Bank continuing to provide emergency funding for the banks after the government provided the controversial bank guarantee of September 2008.

The case concerned notes issued for Anglo, Irish Nationwide Building Society and Educational Building Society.

Anglo and INBS were later nationalised and, after their successor in title, Irish Bank Resolution Corporation (IBRC), was wound up in 2013, the Anglo note, on which €25bn was then outstanding, was converted into long-term Irish government bonds. 

The EBS note no longer exists following the reorganisation of the finances of Allied Irish Banks, owner of EBS.

The constitutionality of what the High Court described as the "far-reaching" legislation under which the notes were issued was a core issue in the appeal.

The Credit Institutions (Financial Stabilisation) Act 2008 was enacted by the Oireachtas with the aim of averting a banking collapse. 

Today, the Supreme Court rejected arguments by Ms Collins the promissory notes were impermissibly issued without a Dail vote in breach of constitutional provisions dealing with appropriation of public money.

It also rejected arguments a statutory power to charge the central fund is unconstitutional unless that charge is pre-quantified or there is an outer limit on it.

In opposing her case, the State maintained the situation in 2008 was not "normal".

The Minister remained fully accountable to the Dail and the Oireachtas was entitled, under the 2008 Act, to authorise the Minister to take the necessary steps to stabilise the financial position of the State, it was argued.  

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