Tuesday 20 August 2019

John-Paul McCarthy: Balancing act as Government and parties shackled by courts

Two underwhelming referendum judgements have opened the door to Ganley & co, writes John-Paul McCarthy

The morning after The Frontline debate between the Tanaiste and Declan Ganley, I dug out the Supreme Court's judgements in the referendum cases, McKenna V An Taoiseach (No 2), and Coughlan v Broadcasting Complaints Commission.



Having listened to the No side's heavy breathing about the largely imaginary "Irish Veto" in EU matters for the millionth time, I read McKenna and Coughlan looking for someone to blame.

Had our Supreme Court done a persuasive job when it ordered RTE to hold the scales equally between the jousting political parties?

The answer is probably no.

These two judgements placed serious shackles on the Irish Government and on the biggest parties in the Republic.

You would expect that the Supreme Court would have given both judgements the full treatment, but they did not.

The McKenna judgement barred the Government from using taxpayers' money when making its case in a referendum. The four judges who bound the Government in that way thought this could be done over a mere 28 pages.

The judgement of the then Chief Justice Liam Hamilton rested on the following idea.

Governments should be left alone for the most part when discharging their executive power. But since referendums have nothing to do with executing the laws of the Republic, then the Government is not free to do what it likes to get its way in the argument.

The core of Hamilton's position boiled down to his assertion that "the action of the Government in expending public funds on the promotion of a [Yes in the 1995 divorce] campaign was not an action in pursuance of the executive power of the State".

Now, this reads to me like an assertion rather than a carefully argued conclusion because governments may obviously feel that protecting the dignity of citizens who choose to remarry is a very big deal, as worthy of the executive's heaviest artillery as any other business.

Hamilton did not grapple properly with the basic problem, which is the problem of how one defines the executive function in the first place.

Another judge of the four who denied the Government access to public funds was Susan Denham, currently Chief Justice.

Denham ducked the problem of definition as well, and simply asserted that "for the Government to fund one side of a campaign is to treat unequally those citizens who hold the opposite view".

This sounds reasonable, but when you think about it for a minute, you can see many unresolved problems.

Couldn't every group that loses in the policy process make a claim like this because they have been beaten by a Government who spent their money in a way they disliked?

Was she offering a cry-baby's charter here?

Only one of the five judges who heard the McKenna case, Seamus Egan, thought the whole thing was preposterous. He took less than four paragraphs to make the point that neither the Constitution nor the nitty gritty of the Referendum Act says anything that could be read as blocking the Dail from giving the Government cash to make its case.

He thought the courts should stay out the political thicket, and that the machinery of government needed a

little play in its joints to work practically.

Pity Egan didn't write more here, considering the scale of what was at stake.

Now, if McKenna is a monument to judicial terseness at a mere 28 pages, then the Coughlan judgement on party political broadcasts is something less edifying again.

Four judges of the five who heard this case came down hard on RTE because of an imbalance in a series of party political broadcasts in the divorce referendum that made up less than 2 per cent of RTE's entire coverage of that referendum.

When you keep that minuscule figure in mind, the four judges who insisted that RTE balance equally the Yes and No parties sounded like virgins who had been confronted by someone in a dirty trench coat.

Only one judge -- Donal Barrington -- was sensible enough to say that it was no big deal if RTE treated the political parties differently than private citizens, because parties are all that separate us from the jungle of armed struggle.

Susan Denham was even less persuasive here than in McKenna when she explained that "if all the parties are either in favour of or opposed to a referendum then party political broadcasts become prima facie unfair and unequal ... "

Does this really follow?

None of the four who worked the equality lever hard in this case really explained why RTE should be punished for simply facilitating the views of the five largest Dail parties, all of whom just happened to favour divorce and who asked for uncontested access to less than 2 per cent of the station's overall air time.

Denham indicated that the electoral process is fundamentally different to the referendum process. Thus party politics cannot play any formal role in a referendum.

She seemed to have forgotten Peter Barry's remark to Sean O Mordha in his Seven Ages documentary where he described the 1983 abortion referendum as the most sordidly partisan episode he had witnessed in a long career.

There you have it.

These are the two meandering and underwhelming judgements that have opened the doors to Ganley, UKIP and the republican-socialist big spenders.

Has raw judicial power ever seemed so uninspiring?

Sunday Independent

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