Outline Biography of Anthony Coughlan
Some years ago a postgraduate student doing a thesis on an aspect of the work of Desmond Greaves and the Connolly Association in Britain asked me to give her a written outline of my political activity over the years, and this led me to do the first draft of these notes. I have extended them and brought them up to date since, as they may be useful to people interested in some of the issues they deal with, in particular the EU-related referendums in the Republic of Ireland between 1972 and 2012 and the Crotty, McKenna, Coughlan and Pringle constitutional actions before the Irish Supreme Court that related to these.
- Anthony Coughlan, 2024
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BACKGROUND
John Anthony Coughlan has been Ireland’s leading critic of the European Union since 1961 and is well-known in British and continental EU-critical circles for his writings and political activity.
He was born in the Glenvera Nursing Home, Wellington Terrace, Cork City on 29 May 1936. His grandparents were small farmers who had holdings in the hills above Bantry, West Cork. His father was manager of Murphy and O’Connor’s Sawmills, Bantry, and his mother, also from Bantry, was a national schoolteacher. He received his primary education from 1939 to 1940 at the old Newcastle village school, outside Clonmel, Co. Tipperary, at the foot of the Knockmeldown Mountains, where his mother was then teaching; then at Bantry Convent of Mercy School during the World War 2 years from 1941 to 1945; and from the latter year onward at Sullivan’s Quay Christian Brothers School, Cork City. His secondary schooling was at Christian Brothers College, Cork. He attended University College Cork (UCC) from 1953 to 1958, his primary degree (BA) being in English, History and Economics, for which he got first class honours in each subject in his degree examination in 1956. Following this he did an MA in English by thesis, his topic being on the theme of tragedy in the novels of Thomas Hardy. He emigrated to London in 1958 and spent three years in that city, during which time he worked for a period as a supply teacher for the then London County Council, studied for a Diploma in Social Policy at Bedford College, University of London, and became a full-time organiser for the Connolly Association in his third year there.
He became interested in politics while at UCC, mainly influenced by his reading on history and current affairs. He first spoke in public during his first undergraduate year – with some trepidation he recalled – in support of a motion at the main student debating society, the “Phil” (i.e. Philosophical Society): “That this house supports Dr Mohammad Mossadegh” – the Iranian Prime Minister who nationalised the Anglo-Iranian Oil Company and who was overthrown in a US-organised coup which installed the Shah Pahlevi government. In 1956 he helped found a student branch of the Irish Labour Party in the College, together with his then friends and fellow students Michael O’Leary, Barry Desmond, Callaghan O’Herlihy. They called it the Pádraig O Conaire branch, after the Irish-language writer who was a supporter of the Irish Labour Party, and they produced the branch “manifesto” in Irish as well as English. Michael O’Leary subsequently became leader of the Labour Party and was Tanaiste in Garret FitzGerald’s Coalition Government in the 1980s, before leaving Labour to join Fine Gael; Barry Desmond became a Labour TD, Minister for Health and head of the European Union
Court of Auditors; and Cal O’Herlihy set up a business marketing consultancy in London. Coughlan spent three years in the Labour Party, 1956-58, while a student. He served on Labour’s Cork Constituency Council and was a delegate to two of the party’s annual conferences in that time. This was his only involvement in party politics and he spent the rest of his life in political pressure groups of one kind or another.
CONNOLLY ASSOCIATION
While in London from 1958 to 1961 he became active in the Connolly Association and Irish Self-Determination League, which was seeking at the time to make British Labour and trade union circles aware of the anti-Catholic discrimination and abuses of civil liberties that then prevailed under the Unionist majority Government in Stormont, Belfast. The Connolly Association had been established as the Connolly Club/Clubs in 1938. Its activity in opposing the Stormont regime was based on its modern Constitution, which it adopted in 1955 and which it operated under until it formally ceased activity in 2023. The Association’s work, which continued during the 1960s and subsequently, was a significant factor in influencing the British Labour Government under Prime Minister Harold Wilson to put pressure on the Unionist administration of Captain Terence O’Neill to concede civil rights reforms in face of the demands of the Northern Ireland Civil Rights movement in 1968/9. Coughlan was active in the Connolly Association during his three years in London and became a full-time organiser of the Association in his last year there. During that year, 1960-61, the Association succeeded in getting over half the members of the British Parliamentary Labour Party to sign a series of telegrams to Unionist Premier Lord Brookeborough urging the release of the political internees from Crumlin Road Prison, Belfast. Many of these had been interned for several years without charge or trial by the Unionist regime under the Northern Ireland Government’s Special Powers Act during the late 1950s IRA Border campaign.
Coughlan was much influenced in his views by the labour historian C. Desmond Greaves (1913-1988), who edited the Connolly Association’s monthly paper, the Irish Democrat, from 1948 until 1988 and who advanced the idea of a civil rights movement as the way to break Unionist political hegemony in Northern Ireland. When Coughlan returned to Ireland in 1961 Desmond Greaves asked him to become Dublin correspondent for the Irish Democrat and he sent that paper regular political commentary for the next forty years until it ceased regular publication in the early 2000s. Unknown to Greaves he kept a record of the latter’s table-talk over the years because of what he regarded as its high quality, and he edited this for publication in 2022 (See www.desmondgreavesarchive.com). Desmond Greaves, who was unmarried and had no children, made Coughlan his heir and literary executor and he in turn has left Greaves’s two-million-word Journal, which he edited, and related papers to the National Library of Ireland through his own literary executor, the historian Dr Ruan O’Donnell of the University of Limerick, to whom he has willed the copyright of Greaves’s books and unpublished writings. Together with some Dublin friends and admirers of Greaves he established the annual Desmond Greaves Weekend Summer School in 1989, which still continues, and he has acted as de facto secretary to its committee over that time.
TRINITY COLLEGE DUBLIN
Anthony Coughlan was appointed a lecturer in Social Policy at TCD in 1961, his having taken economics in his BA at UCC, his Diploma in Social Policy from London and his knowledge of the Irish and British social service scene being considered relevant to teaching social policy, then termed social administration, in a new degree course that was being established for intending social workers in Trinity’s Department of Social Studies at the time. In due course he became Senior Lecturer in Social Policy and Head of Department and was responsible for the eventual establishment in TCD of a separate degree course in his academic specialty of social policy. In the mid-1960s he conducted, together with Professor Geoffrey Bourke of UCD, a survey of Dublin’s general and paediatric hospitals which showed the high degree of misallocation of patients in these institutions, as judged by the levels of medical and nursing care they were receiving at the time the two researchers visited them. That position remains substantially unchanged nearly sixty years later and is significantly responsible for the current problem of many patients having to wait for long periods on trolleys in hospital corridors before proper hospital admission because of bed blockages (See Dublin General Hospital and Geriatric Study, 1966, and Dublin Hospital Paediatric Study, 1969, sponsored by the Medical Research Council of Ireland – the latter publication co-authored with J.W. McGilvray). He wrote a number of articles on social policy issues in professional journals over the years and was a conscientious teacher and popular with his students, some of whom later became well known in Irish public service and social work circles (e.g. broadcaster Joe Duffy, Irish Government Secretary Dermot McCarthy and former EU Commission Secretary General David O’Sullivan). Apart from the hospital surveys mentioned, his academic research activity was modest, largely because of his involvement in external political activity. He took early retirement from TCD in 1999 at the age of 63. TCD Senior Lecturer grade, which was his at the time he retired, became titled “Associate Professor” some years later.
WOLFE TONE SOCIETY
In 1964 Coughlan joined the Dublin Wolfe Tone Society, which had been set up the year before to mark the two hundredth anniversary of Wolfe Tone’s birth and whose members decided to continue in being afterwards as what he termed “a kind of Green Fabian Society” in which various independent Republicans interacted with local radicals and left-wingers. He became its assistant-secretary and then secretary until the end of the 1960s. While Coughlan did not join either Sinn Fein or the IRA, his involvement with the Wolfe Tone Society enabled him to form good personal and political relations with the Republican leaders of the time and the Society was one of the influences on the politicisation of the Cathal Goulding-led Republican Movement during the 1960s by encouraging Republican involvement in political campaigns on such issues as Dublin ground rents and housing standards, preserving the Taylor’s Hall, supporting the small farm cooperative movement in the West, campaigning on civil liberties issues and the Irish language, defending Irish neutrality and opposing the Anglo-Irish Free Trade Agreement and Irish membership of the European Economic Community (EEC), known then as the Common Market, for which Ireland initially applied in 1961. Through his personal contacts and his involvement with the Wolfe Tone Society Coughlan played a significant role in encouraging Republican support for, and participation in, the 1960s Northern Civil Rights Movement and in the foundation of the Northern Ireland Civil Rights Association (NICRA) in January/April 1967. He attended the two foundation meetings of the NICRA as an observer from the Dublin Wolfe Tone Society. He also walked in the first Northern Ireland civil rights march from Coalisland to Dungannon on 24 August 1968 and he was present as an observer from the Dublin Wolfe Tone Society at the Duke Street, Derry, demonstration on 5 October 1968, the attack on which by the then Royal Ulster Constabulary (RUC) brought the civil liberties situation in Northern Ireland to world attention.
The abuses of civil liberties in Northern Ireland was Coughlan’s particular political interest in the 1960s and reflected his continual contact with Desmond Greaves and the Connolly Association in Britain, as well as Greaves’s personal interaction in turn with Messrs Goulding, Garland and MacGiolla amongst the Republicans, and with Betty Sinclair, full-time secretary of the Belfast Trades Council, and other Northern Trade Unionists, who were mostly communists but who came from Protestant background and were among the few from that community who were willing to champion Catholic/nationalist grievances at the time. The politicizing Republicans and the Northern Trade Unionists were the two principal political elements that came together to establish the NICRA in 1967. A few independent Northern nationalist activists were also involved.
In later life Coughlan regretted that instead of seeking to encourage the politicisation of the Republican Movement in the 1960s – although he regarded that as a broadly positive development – he did not concentrate his political efforts on seeking to make the Irish Labour Party and Labour Movement republican, something which James Connolly had sought to do in his day, which Desmond Greaves had advocated the desirability of, and which he considered with hindsight would probably have achieved more politically fruitful long-term results. He holds the view that Labour’s “anti-national” tradition and its opportunistic desire on several occasions to get into government office with Fine Gael at all costs, so reviving that party in government and enabling Fianna Fail to revive in opposition, have been primarily responsible for bringing Labour to its current pitiful state in Irish politics.
Coughlan was one of the foundational committee members of the Irish Anti-Apartheid Movement when it was established in 1964 and he was the first friend and political colleague in Ireland of Kader Asmal, the Indian South African who initiated this development, together with his English wife Louise, when Asmal came to work as a law lecturer at Trinity College. Asmal later became Minister for Water and Forests in Nelson Mandela’s post-apartheid government and was South Africa’s Minister for Education in its successor.
EU OPPONENT
Anthony Coughlan’s first political action when he came to work in Dublin in 1961 was to organise a collective letter criticising the Irish Government’s application to join the then European Economic Community (EEC), which was made in that year, and calling for “a more critical public appraisal” of the Government’s policy This was signed by his then friend Barry Desmond, by Michael Mullen TD, Dr Noel Browne TD, Sean Keating RHA and others. It was carried in the Irish Times on 12 February 1962. He opposed European integration on democratic and internationalist grounds and regarded the attempt to turn the EEC/EC and later EU into an entity with the characteristics of a supranational Federation as, inter alia, an attempt by Europe’s former imperialist States to become a big power in the world collectively when they could no longer be so individually. It subordinated the interests of the States involved to American foreign policy and also helped substantially to free the European-based Big Companies from democratic control by Europe’s Nation States, Governments and Parliaments. He saw this development as an assault on democracy and political independence at the national level and as likely to make the national question, the issue of national independence and democracy, the central issue of European politics for decades, not least for the big European countries that traditionally had caused national problems for others, including Ireland, and that this would remain the case until the EC/EU broke apart as an essentially irrational political construct – an outcome which he regarded as inevitable. He wrote a number of theoretical articles on the subject of nationality, the nation state and democracy and regularly engaged in public polemics against European integration from 1961 onward.
The Wolfe Tone Society campaigned against the 1965 Anglo-Irish Free Trade Agreement, which the Government regarded as a step towards preparing Ireland for EEC membership. When Ireland’s application to join the EEC was revived at the end of the 1960s following the death of French President Charles De Gaulle, a politician whom Coughlan greatly admired, he became joint-secretary, together with the economist the late Raymond Crotty, of the Common Market Study Group and later the Common Market Defence Campaign, which the Wolfe Tone Society initiated with a view to drawing new forces into opposing EEC membership. In 1970, when the EEC issue was coming to the fore a second time following De Gaulle’s death, the Republican Movement split between Provisionals and Officials because of Northern Ireland events and this encouraged Coughlan to concentrate primarily on EC/EU matters thereafter rather than the Northern Ireland problem. The pamphlets produced by the Common Market Study Group and Common Market Defence Campaign provided much of the argumentation that the No-side forces used in the 1972 referendum campaign on Ireland’s accession to the then EEC. As a key EU-critical ideologue Coughlan liaised closely with Michael Mullen, General Secretary of the ITGWU, with Ruairi Roberts, General Secretary of the Irish Congress of Trade Unions, and with Justin Keating TD and Brendan Halligan of the Labour Party in working for a No vote in the lead-up to Ireland’s EEC Accession Treaty referendum on 10 May 1972. He debated the issue of EEC membership with Dr Garret FitzGerald, Ireland’s best-known Europhile at the time, on numerous occasions at meetings round the country during what was a vigorously fought referendum campaign. He later remarked that while the No-side usually won these public debates, as judged by the votes that were sometimes taken at their end, when it came to the actual referendum poll the Irish people generally said to themselves that if Fianna Fail and Fine Gael, traditional political antagonists, were united in recommending a Yes vote to joining the EEC, then that must be a good thing; so that the referendum outcome for Yes corresponded to the combined vote of the State’s two main political parties at the time.
The Common Market Study Group and Defence Campaign were the first of a series of political pressure groups that Coughlan helped to establish and run over the next fifty years with a view to providing critical argument against supranational European integration and encouraging parallel anti-EC/EU activity amongst interests on the left, right and centre of Irish politics in the nine constitutional referendums that were held in the Republic between 1972 and 2012. These pressure groups were respectively the Irish Sovereignty Movement – in the period following Ireland’s EEC Accession in 1973, which also campaigned for British moves on Irish reunification – the Constitutional Rights Campaign in the 1987 Single European Act referendum, then Amárach (Tomorrow), then the National Platform in the 1992 Maastricht Treaty and 1998 Amsterdam Treaty referendums, and then the National Platform EU Research and Information Centre in the two Nice Treaty referendums of 2001 and 2002 and the two Lisbon Treaty referendums of 2008 and 2009. He remains spokesman for the latter body up to the present.
Coughlan was secretary and leading spokesman of all these bodies, which operated through holding occasional public meetings, producing documentation for EU-critical activists, sending material to the media and developing contacts with likeminded EU-critical interests in other countries. He sought to develop good relations with people on all sides of the political spectrum in Ireland who were concerned at different aspects of EU integration, providing them with arguments and data on issues of EU law and fact, on which he became the country’s leading EU-critical authority. He held that for democrats the issue of democracy and national independence should transcend traditional left-right divisions. This stance made him politically persona grata to EU-critics on the political left, in Republican circles and amongst Irish neutrality advocates, as well as to Catholic traditionalists who were concerned at the EC/EU involving itself in fundamental rights matters, and elements on the so-called political right. While there was never any formal alliance between these different groups in Ireland’s successive EU referendum campaigns and no question of their coming under one political umbrella, the fact that they tended to sing from substantially the same “hymn-sheet”, with political themes and arguments provided to a large extent by the bodies Coughlan belonged to, encouraged maximum involvement by people of different EU-critical views on these occasions. It was Coughlan’s view that this parallel or coordinated activity by interests on the political centre, left and right, something which he always sought to encourage, was a necessary precondition of the No-side victories in the 2001 Nice Treaty referendum and the 2008 Lisbon Treaty referendum.
THE CROTTY CASE, 1986/1987
Coughlan was himself substantially responsible for these referendums being held and for the Irish people being enabled to vote on successive EC/EU Treaties by the part he played in initiating the 1986-7 Crotty case before the Irish High Court and Supreme Court. The Crotty case stemmed from the Irish Government’s decision in 1986 to seek to ratify the Single European Act (SEA) treaty by simple parliamentary majority in the Oireachtas. The SEA was the biggest step towards further European integration since the Treaty of Rome had established the then EEC in 1957. It gave the European Community its single internal market and introduced the widespread use of majority voting on the EC Council of Ministers for that purpose. It also indicated support in principle for a European economic and monetary union and for Brussels intervention in human rights matters.
Coughlan and his colleagues sought to defeat the Single European Act politically before resorting to legal action. Ireland was the last EEC Member State to seek to ratify the SEA treaty, as the Irish ratification had been delayed by a Divorce referendum in June 1986, in which voters had rejected the legalisation of divorce. In the following months a strong campaign against the SEA in Labour and Trade Union circles opened the likely prospect that the Labour Party annual conference that year would reject the treaty. This could have brought down the then Fine Gael-Labour Coalition Government of Garret FitzGerald and Dick Spring and would certainly have produced a political crisis, as Fianna Fail in opposition was critical of aspects of the SEA and party leader Charles Haughey’s assistant, Dr Martin Mansergh, interacted with Coughlan on several occasions encouraging his concerns about the matter. The Labour Party leadership used the excuse of a trade dispute among cleaners at Cork City Hall, where the party’s annual conference was due to be held, to postpone that event. In early December 1986 the Labour Party’s TDs obediently voted to ratify the treaty in the Dáil, without the party’s members being allowed a say through their annual conference.
In late 1986 Coughlan organised a collective letter to the Irish Times, signed by Kader Asmal, Seamus Ó Tuathail BL and others, criticising the State’s proposed mode of ratification of the SEA by simple parliamentary majority and contending that only the Irish people themselves, as the repositories of State sovereignty, could make the requisite surrenders of State sovereignty involved in this new European treaty. This letter attracted the attention of Paul Callan SC in the Law Library, with whom and with Seamus Ó Tuathail and others he planned an injunction action to prevent the State ratifying the Treaty without a referendum of the people, on the ground that some of its provisions were unconstitutional. Having initially thought of offering himself as plaintiff in such an action, he asked his friend the economist Raymond Crotty whether he would take the case and Crotty readily agreed, being a more publicly suitable person as an established married man with a family, and a distinguished economist, to take such an action than Coughlan himself would have been at the time.
Coming up to Christmas 1986 Raymond Crotty’s counsel applied to the High Court for a Declaration that the State could not be bound by the provisions of the SEA Treaty unless it had first been approved by a referendum of the people. They also applied for an injunction restraining the Government from depositing the instrument of ratification of the SEA in Rome – that being the final step in the treaty ratification process – without such a referendum. All the other EEC States had by then ratified the SEA and the Dáil and Seanad had purported to ratify it by majority vote. In the course of Crotty’s injunction application Ireland’s then President, Patrick Hillery, signed into law the Bill implementing the domestic provisions of the SEA, thereby indicating that he had no doubts regarding the Bill’s constitutionality; for otherwise he as President would have been obliged to refer it to the Court for testing. This put considerable pressure on the judge hearing Crotty’s application.
On Christmas Eve 1986 High Court Justice Mr Donal Barrington granted Raymond Crotty’s injunction application. He decided that Crotty had made a plausible case that his constitutional rights as an Irish citizen would be permanently affected if the SEA Treaty should come into came into force without a referendum and that there should be a full trial of the validity of his claims. In January 1987 a trial of the substantive action took place before a three-judge High Court, which Crotty lost on grounds of his alleged lack of locus standi. There followed an appeal by Crotty’s counsel to the five-judge Supreme Court, at the commencement of which Supreme Court Justice Mr Brian Walsh remarked that Mr Crotty’slocus standi was like that of the proverbial Dutch boy standing with his finger in the dyke to hold back the legislative flood! In April 1987 the Supreme Court found in Crotty’s favour in a majority, three-two, judgement, following which the new Haughey-led Fianna Fail Government that had come into office between the High Court and Supreme Court stages of the Crotty case, held a constitutional referendum in May 1987 permitting the State to ratify the SEA, which was duly done. This whole affair delayed the coming into force of the Single European Act by six months. (See a more detailed note on the Crotty judgement of the Irish Supreme Court at the end of this document.)
Irish referendums on subsequent EC/EU Treaties have all stemmed from the Crotty case, for Irish Governments have known that if they failed to hold such they would face another Crotty-style constitutional challenge. That is the reason why Ireland was the only one of the 28 EU Member States to hold a referendum on the EU Constitution / Treaty of Lisbon in 2008 and 2009. The Governments of all the other EU States had decided to avoid referendums on that Treaty, which incorporated 99% of the legal content of the 2004 Treaty Establishing a Constitution for Europe, because of the way in which that EU constitutional treaty had been rejected by French and Dutch voters when they had been given an opportunity to vote on it in summer 2005.
THE McKENNA CASE, 1995
In view of the positive public attitudes to European integration that Irish voters still held at the time of the 1987 SEA referendum, that Treaty would almost certainly have been approved without difficulty in the referendum on it, but to make assurance doubly sure the Irish Government of the day decided to spend public money, which came from opponents as well as supporters of the SEA, on a large-scale advertising campaign urging a Yes vote. No previous Irish Government had ever spent public money in a constitutional referendum in this one-sided way. When it was proposed to repeat this partisan use of taxpayers’ funds in the June 1992 referendum on the Maastricht Treaty on European Union, Coughlan organised a legal challenge to the constitutionality of this action. Patricia McKenna, a part-time art teacher at the time, agreed to act as plaintiff on this occasion. She lost her case in the High Court and as the Maastricht referendum vote was only a few days later her legal team decided not to appeal the matter to the Supreme Court. Three years later however, in 1995, Patricia McKenna, having been elected a Green Party MEP for Dublin in the interim, bravely revived her constitutional challenge in the context of that year’s Divorce Referendum, even though she personally, and her party, were in favour of divorce. Paul Callan SC and Seamus Ó Tuathail BL were again the principal barristers on this occasion, and Coughlan was intimately involved in preparing documentation on international referendum practice for counsel in the case, although he took no public position on the specific issue of divorce as such.
In November 1995, just a week before the Divorce poll, the Supreme Court gave Patricia McKenna a legal victory by ruling that it was unconstitutional of the Government to use public money to seek to obtain a particular result in a referendum. As a result the Government had to withdraw immediately its extensive Yes-side advertisements from the newspapers on the weekend before the poll. In this new context, with just five days to the vote, party political broadcasts on radio and television became vitally important for the Government and the Yes-side forces. As all the Dáil political parties were in favour of divorce, this led to a total of 42 minutes of free broadcasting time being allocated to the Yes side as compared with 10 minutes to non-party No-side groups in the four days coming up to the referendum. The Divorce referendum was narrowly carried, the Yes-side having a majority of only one half of one percent (c.10, 000 votes) over the Nos. While most objectively-minded people would accept that the Yes-side had won the Divorce referendum by unconstitutional means, namely the one-sided Government advertising that had taken place – not to speak of the breaches of the provisions of the Broadcasting Acts by the State broadcaster (RTE), as established five years later (see the Coughlan case below) – the Supreme Court declined to “go behind the mind of the people” and overthrow the referendum result in the appeal against the validity of that which was made by the late Senator Des Hanafin. Coughlan agreed to act as an “expert witness” for Hanafin in this appeal, dealing with the issue of unconstitutional Governmental advertising in the context of the Divorce referendum.
OVERTURNING NICE ONE IN 2002 … THE REFERENDUM COMMISSION
The response of the Government to the 1995 McKenna judgement was to legislate for a statutory Referendum Commission which would be charged with drawing up two statements for the information of voters in future referendums: one statement that would tell citizens what the purpose of the referendum was, and the other that would set out the main arguments for and against the proposed constitutional amendment in a balanced and equal manner. The Commission was not a permanent body but was established anew with a new chairman every time there was a referendum (It was replaced by a permanent commission responsible for overseeing elections as well as referendums from 2024.) This Referendum Commission was first called into being under the 1998 Referendum Act to deal with the Amsterdam Treaty and Good Friday Agreement referendums that were both held on the same day in May that year. Three years later, in 2001, when it came to the European Nice Treaty referendum the Referendum Commission, then still chaired by retired former Chief Justice T.A. Finlay, who had chaired it since its inception, invited Coughlan on behalf of the National Platform and Mr Alan Dukes on behalf of the European Movement-Ireland to have their respective organisations mentioned in the Yes/No booklet which the Commission proposed sending to all households, as bodies that would provide factual information on each side of the argument. This led Coughlan, whose home in Drumcondra was the accommodation address of the National Platform, to instal two extra telephone lines manned by volunteers to deal with the No-side queries that flowed in (The European Movement operated from a city-centre office with reportedly a paid full-time staff and a bank of telephones).
The fact that in the first Nice Treaty referendum there was for the first time significant money behind the arguments of the No-side through the advertisements of the Referendum Commission, as well as the fact that key Yes-side and No-side organisations were officially listed in the manner mentioned in the Commission’s information brochure sent to voters, were influential factors in giving the No-side victory in June 2001.
This led the Government, in order to overthrow the Nice One result the following year, to withdraw from the Referendum Commission its function of setting out the main arguments for and against the proposed change to the Constitution. This was done by an amendment to the Referendum Act that was put through all stages of the legislative process in the Oireachtas in a single day – on the last day before the Dáil and Seanad rose for the Christmas Holidays in December 2001. This was done with just one day’s notice to the Opposition, when most people were thinking about Christmas parties, so that it went virtually unnoticed by the Irish media. The Fine Gael and Labour parties voted against this amendment, which was however carried by Fianna Fail and Progressive Democrat votes in the Oireachtas.
The Referendum Commission was however still left with its function of informing citizens what the referendum was about. In Nice One in 2001 the proposition before citizen-voters was whether they approved or not the ratification of the Treaty of Nice. In Nice Two in 2002 the Government added to the amendment permitting ratification of Nice a wholly unrelated amendment providing that the State would have to hold a referendum of the people before it could join any future EU defence pact, as concerns regarding Irish neutrality had been influential with many No-side voters in Nice One. This second amendment was joined to the amendment permitting ratification of Nice as one single proposition, so that voters had to vote either Yes or No to these two quite different propositions simultaneously in a single vote. This was something dubiously constitutional in itself, but no one came forward to challenge it. In turn the Referendum Commission had the function in Nice Two of telling citizen-voters what this joint amendment signified. Thus whereas in Nice One the Yes/No advertisements of the Referendum Commission helped the No side by putting public money behind their arguments for the first time, in Nice Two the Referendum Commission’s function of telling citizens what the referendum was about helped pile up votes for the Yes-side; for if citizens voted to ratify Nice they would also be inserting this neutrality amendment, which most voters approved of, into the Constitution, whereas if they rejected Nice they would be rejecting the accompanying neutrality amendment. The Referendum Commission’s advertisements on what the referendum was about drew attention to these crucial points.
While unsurprised at the Government’s chicanery in removing the Yes/No function from the Referendum Commission at such short notice, with most people being unaware of what was happening, Coughlan regretted that this progressive policy follow-on from the McKenna judgement, although not a legally necessary one, had thereby been eliminated. He believed that a fair setting-out of the arguments for and against proposed constitutional amendments that were objectively grounded in their text would have been a valuable instrument of public political education in Irish referendums generally, regardless of their content. Moreover, the fact that public money was used to publicise the Yes-side and No-side arguments on an equal basis through the advertisements of the Referendum Commission in the Amsterdam Treaty and Nice One referendums, meant that private interests, especially on the Yes side in EU-related referendums, spent less money than they otherwise would. However, the removal of the Yes/No function from the Commission encouraged a flood of private money in the Nice Two and Lisbon Treaty referendums. This was overwhelmingly on the Yes side by a factor which Coughlan estimated as of at least ten to one on these occasions.
The character of the Yes-side campaign in the second Nice Treaty referendum may be gauged from a comment by leading journalist James Downey, himself a supporter of the Treaty, who reported in one of his weekly Irish Independent columns at the time that a leading local politician had said to him: “We must unleash terror on the Irish people.”
Worth noting also is the fact that in the two Nice Treaty referendums of 2021 and 2002, and the two referendums on the Treaty of Lisbon in 2008 and 2009, the respective Referendum Commissions were chaired by serving High Court judges who were open to promotion to the Irish Supreme Court and the EU Court of Justice, rather than by retired judges with no such prospects. This tended to make the Commissions pliant instruments of Government policy. When it came to the votes on Nice and Lisbon the Referendum Commission disseminated highly tendentious information in the guise of supposedly objective statements on what these referendums were about. These comments were made by the judge-chairmen in newspaper articles and broadcast question-and-answer sessions, even though statutorily only the five members of the Referendum Commission, acting as a collectivity, were entitled to make such interpretative statements. Again no one came forward to challenge the constitutionality of this conduct on the part the Referendum Commissioners and in particular their chairmen on these occasions. This was particularly the case when it came to ratifying the EU Constitution, now embodied in the 2009 Lisbon Treaty. In the second Lisbon Treaty referendum High Court Justice Mr Frank Clarke, a Fine Gael supporter, chaired the Referendum Commission. He was later promoted to the Supreme Court and in time became Chief Justice.
THE COUGHLAN CASE, 2000
Coughlan took no public position on Ireland’s various “moral referendums” on divorce and abortion that were held in the 1980s and 1990s, believing that to do so would divide potential EU-critical opinion. He contended however that the allocation of free broadcasts to the larger political parties on these occasions raised similar issues of democracy and the equality of citizens in referendums as had been raised in the McKenna case. Such broadcasts had used publicly financed resources to benefit the Yes side in the 1972 EEC Accession, the 1987 Single European Act and the 1992 Maastricht Treaty referendums because the larger Dáil parties that favoured a Yes were given free referendum broadcasting time. Usually Fianna Fail as the largest Dáil party was given seven or so minutes of free broadcasting time on these occasions, Fine Gael four minutes, Labour two to three minutes and small political parties with fewer than seven TDs were denied free broadcasts altogether. Coughlan held that this imbalance of radio and TV broadcasts was both unconstitutional and in breach of the statutory provisions of the Broadcasting Acts, which require broadcasters at all times to be fair, impartial and objective in their coverage of issues of public controversy and debate – implying that there should be a broad equality of broadcast treatment of both sides on contentious referendum issues.
Arising from the 42 minutes/10 minutes imbalance of free broadcasting time in the 1995 Divorce referendum, Coughlan complained to the Broadcasting Complaints Commission, which adjudicated at the time on public complaints made under the Broadcasting Acts. Having been “given the run around” for some 18 months by the Complaints Commission, to use the words of Mrs Justice Catherine McGuinness before whom he sought judicial review of the legality of the Commission’s rejection of his complaint, his lawyers was given leave for such a review. There followed a trial of the action in the High Court, in which Coughlan’s old friend from the Crotty and McKenna cases, Paul Callan SC, invited Michael McDowell SC to make the main pleadings, with Seamus Ó Tuathail BL assisting – the lawyers acting on a pro bono publico basis. In 1998 the single-judge High Court (Carney J.) upheld Coughlan’s contention that the Broadcasting Complaints Commission had incorrectly interpreted its statutory obligations under the Broadcasting Acts in the Divorce referendum and that Coughlan’s view of the matter was valid.
RTE Management at the time did not at first wish to appeal the High Court decision to the Supreme Court, as its members had no special attachment to party political broadcasts, but they were pressed by some of Coughlan’s old EU opponents on the then RTE Authority – former Taoiseach Dr Garret FitzGerald and Europhile trade unionists Desmond Geraghty and Billy Attley in particular – to appeal the judgement to the Supreme Court. The Government through the Attorney General joined itself to RTE and the Broadcasting Complaints Commission as a notice party to this action. Important issues were at stake. The lawyers for Coughlan’s opponents argued that the Irish political parties as organisers and articulators of public opinion had a right to special broadcasting facilities to enable them to communicate with the public in referendums. If the Supreme Court had agreed with this line of argument it would not only have sanctioned free broadcasts for the political parties on these occasions, but would have opened a legal way round the McKenna judgement by enabling public funds to be given to political parties in referendums as well. In the event, in January 2000, the Supreme Court in a four-to-one judgement, with Barrington J. dissenting, upheld the High Court judgement in favour of Coughlan by laying down that both the Broadcasting Acts and the Constitution require equality of free broadcasting time in referendums – a requirement that can of course be met by having no such broadcasts at all on these occasions, as has been RTE’s practice since.
On two later occasions the Broadcasting Complaints Commission upheld complaints that Anthony Coughlan made arising from his EU concerns. In 2007 the Dublin office of the EU Commission spent some €360,000 on a series of broadcasts on Irish local and community radio stations, ostensibly advertising the existence of a citizens’ information service on the EU but prefacing them with loaded statements on how Ireland had allegedly benefited from EU membership. The Broadcasting Complaints Commission agreed with Coughlan’s contention that most of these statements amounted to political advertising which was designed to influence the voting behaviour of citizens, and as such that they were in breach of Ireland’s statutory ban on such advertisements. Patricia McKenna MEP also complained separately about the same matter. If these complaints by Coughlan and McKenna had not been made and upheld, there can be little doubt that the EU Commission would have extended such advertising beyond local radio stations to Irish national radio and possibly national TV in the Lisbon Treaty referendum on the proposed EU Constitution that was expected in the following year, 2008. The second occasion was a complaint that Coughlan made against a “Wide Angle” programme on the Newstalk 106 station during the second Lisbon Treaty referendum in 2009, when there was an imbalance of some six contributors to one in favour of the Yes side and the programme presenter also leant heavily to that side. This was but one of a whole series of one-sided partisan broadcasts by Newstalk 106 during that referendum.
Coughlan met Dr Garret FitzGerald, for decades Ireland’s best-known Europhile, in a gathering at a public lecture in Trinity College shortly before Dr FitzGerald’s death in 2011. They had frequently debated EC/EU issues in previous years. On greeting Coughlan the former Taoiseach wagged his finger facetiously and said: “You are the enemy.” It was a statement Coughlan was happy to take as a compliment from one of his main ideological opponents.
THE PRINGLE CASE, 2012
In 2012 Coughlan and a friend of his, Kevin McCorry, former organiser of the NICRA in Belfast, supported Donegal Independent TD Thomas Pringle in initiating a legal challenge to the constitutionality of Ireland subscribing over a billion euros and regular sums if necessary thereafter to the European Stability Mechanism (ESM), which was a cross-EU fund being set up to defend the euro-currency against speculative attacks. Pringle and his lawyers contended that such a major long-term financial commitment called for a prior referendum in Ireland. They also contended that establishing the ESM was against provisions of the EU treaties which forbade bank bailouts by national governments and was therefore illegal under EU law. Coughlan invited Cork solicitor Joe Noonan, whose submission on Irish foreign policy and neutrality had been central to the success of the 1987 Crotty action on the SEA, to act as solicitor for Thomas Pringle. He also raised some €30,000 from political sympathisers to assist solicitor Noonan meet the heavy expenses involved in conducting this action. In the event the Supreme Court ruled, with one judge dissenting, that a referendum on the treaty establishing the ESM was unnecessary in Ireland but referred the issues of EU law involved to the EU Court of Justice in Luxembourg. This required Pringle’s lawyers to go before that court for a full hearing at which all 28 of its judges were present, as all EU Governments were concerned with the outcome – one of the few occasions that this has happened. The ECJ gave a unitary judgement rejecting Thomas Pringle’s contention, but the Irish Supreme Court decided that as he had raised important points of law and had nothing personally to gain by taking his action, it awarded Pringle his costs. This enabled Coughlan to return the £30,000 that he had raised to those supporters of Deputy Pringle who had originally contributed it.
INTERNATIONAL WORK
Anthony Coughlan’s work on the EU in Ireland made him widely known as a speaker and writer in EU-critical circles in Britain and across the continent. In 1993 he was elected a Board member of the European Alliance of EU-critical Movements (TEAM), an international network of democratic EU-critical bodies, and he was its chairman/coordinator for some years and took part in several international conferences that it organised. In the 1990s and early 2000s he was an Advisory Board member of The European Journal, London, the principal intellectual organ of British Euro-criticism at the time, which had been established by Conservative MP Bill (Sir William) Cash, who was chairman of the House of Commons EU Scrutiny Committee, with whom he became personal friends. In 2005 a pamphlet that Coughlan wrote on the proposed EU constitutional treaty, the Treaty Establishing a Constitution for Europe, was translated into Czech, with a lengthy preface by Czech President Vaclav Klaus, who was opposed to the EU Constitution. This was followed by an invitation to Coughlan to speak on the Treaty Establishing a Constitution for Europe at the Centre for Economics and Politics, Prague, in summer 2005, at which President Klaus presided. There were some 400-500 people present on that occasion, which was held in the Automobile Club, Prague, including, Coughlan was told, six foreign ambassadors. President Klaus remarked that he had no disagreement with any of Coughlan’s answers following a three-quarter-hour question-and-answer session that followed the lecture.
Coughlan was a friend of and collaborator with Danish MEP Jens-Peter Bonde, who was Denmark’s best-known EU critic for decades. Bonde had first come to Ireland to lend support at the time of the 1986/7 Crotty case. Coughlan assisted Bonde on various points in the latter’s editing of “Reader-Friendly Editions” of the Nice Treaty, the EU Constitution and the Lisbon Treaty, as well as Bonde’s lexicon of EU terms: euabc.eu. In 2008 Bonde invited Coughlan to become President of the Foundation for EU Democracy, Brussels, a research think-tank attached to the EU Democrats cross-EU political party which Bonde then belonged to, with Bonde himself becoming its Vice-President, and Coughlan retained that position, which was unpaid, until the Foundation was wound up.
GEORGE GILMORE AND GERRY ADAMS
Anthony Coughlan was also a friend of the Protestant left-wing Republican George Gilmore, who with Peadar O’Donnell had been involved in the Irish War of Independence and was one of the founders of the Republican Congress in the 1930s. He recorded various reminiscences of Gilmore’s, which are available for researchers, as he had done with Desmond Greaves. Gilmore made him his literary executor and Coughlan was with him when he died in 1985.
Coughlan had no contact with the “Official” Republicans following the 1970 split. He was opposed to the military campaign of the Provisional IRA, believing that it could not attain its desired aim of a united Ireland, although he did not criticise the Provisionals publicly. In 1973 he received a letter from Northern Republican Gerry Adams, then a prisoner in Long Kesh and unknown to Coughlan or the general public at the time, seeking information on the Common Market/EEC. This began a decades-long relation, mainly an epistolary one and largely on Coughlan’s side but with occasional meetings, in which he argued the case for a political approach to completing the Irish national independence revolution, and the futility of militarism. He was sometimes invited to make suggestions for public speeches by Adams during that time. This was presumably one of the many influences on the Provisional leader’s thinking during this period. In various private memos to Adams Coughlan urged that if he and his colleagues in Provisional Sinn Fein “went political” they should avoid at once the issues of the “liberal agenda”(viz. divorce, abortion, gay marriage, surrogacy, euthanasia), treating these as matters of private conscience, as well as left-wing advocacy of “socialism”, and should stick to political Republicanism, namely, advocacy of Irish independence and sovereignty vis-a-vis the EU and advocacy of national reunification vis-a-vis the UK, and seeking to get the widest possible range of people to support these objectives. Unfortunately, this advice was not taken and Provisional Sinn Fein abandoned its earlier republican stance and became a pro-EU and anti-Brexit party at the time of the 2016 UK Brexit referendum.
CAMPAIGN FOR AN INDEPENDENT BRITAIN
In 2021 Anthony Coughlan was made an honorary life-member of the Campaign for an Independent Britain (CIB), the longest-established network of EU-critical bodies in the UK, encompassing Conservative and Labour organisations, in recognition of his work for British democracy vis-a-vis the EU since the 1960s. The CIB presented him with a silver salver to honour his work on that occasion. Coughlan had campaigned for the anti-EEC side in the UK’s first ever referendum, that held by Labour Prime Minister Harold Wilson in 1975, two years after the UK and Ireland had together joined the then EEC, on whether it should remain an EEC member or not. On that occasion he spoke on No-side platforms alongside Labour’s Tony Benn in Acton Town Hall, West London, and with Labour’s Peter Shore and Conservative Sir Richard Body in the Beaver Hall, East London. Over forty years later, in 2016, Coughlan and his colleagues in the National Platform EU Research and Information Centre welcomed Brexit as a major advance for democracy in these islands and a significant blow to the European Union following the UK referendum on EU membership.
In his later years Coughlan concentrated on writing on EU matters and sorting and editing the Greaves, Connolly Association and Gilmore papers in his charge. He edited and compiled an index for C. Desmond Greaves’s two-million-word Journal for placing on the internet at www.desmondgreavesarchive.com In particular he was pleased to edit Greaves’s Table Talk, which he was responsible for recording and collating and some of which he regarded as comparable in quality to that of Johnson, Coleridge and Goethe. In 2021 he wrote a pamphlet on Hollowing Out Irish Independence: How the Irish people were made citizens of an EU Federation, advocating that Ireland too should leave the EU as the UK had done and stating that this step was inevitable in time. This was circulated to all Oireachtas members and sundry Irish media and opinion formers. He wrote a document: “In Defence of the Nation State: Nation, Nationalism, Internationalism, Supranationalism – Basic democratic principles” setting out the general principles that should govern these ideological positions, as well as an extended criticism of EU integration in “Basic Critical Facts on the EU” for the general use of EU-critics in Ireland and internationally. These may be accessed under the Tab “Cognate Articles” on this web-site: www.desmondgreavesarchive.com
In 2022 he wrote to some eighty Brexiteer MPs in the British House of Commons setting out various points relevant to Irish interests and the Northern Ireland Protocol that was attached to the UK Withdrawal Agreement from the EU. He put forward the view that as Brexit was almost certainly irreversible and as it could never be in Britain’s – or England’s – security interest to have a united Ireland inside a Franco-German-dominated EU Federation, those who advocated that Ireland remain an EU Member State were in effect advocating the indefinite continuance of Partition. By corollary, he believed that those who wished Ireland to be eventually reunited peaceably as one State should support the call for an “Irexit” to follow Brexit. This would be at once be a conciliatory move towards the “Britishness” of Northern Ireland Unionists, who had mostly voted for Brexit in the 2016 referendum, and would enable the Irish people re-establish their lost national democracy and independence. It seems that Coughlan was the first person to use the word “Irexit” – a new word in the English language – in various documents that he published following the Brexit referendum.
PERSONAL LIFE
As regards his personal life, Anthony Coughlan married the artist Muriel Saidlear in January 1984, whom he had met in the Wolfe Tone Society in the early 1970s Her father, Annraoi Saidléar, who was born in Buttevant, Co. Cork, was a teacher, playwright and Irish language activist who had participated in the War of Independence in the Gorey, Co Wexford, area. Her mother, Mary Ann Travers, was a native of Gorey. Desmond Greaves noted their wedding in theIrish Democrat under the headline, “Dublin activists wed.” It was a fair summation. They had no children. Muriel Saidlear worked as secretary of the Trinity College History Department for some twenty years before her retirement in 1999, which was the same year that Coughlan also retired from TCD, taking advantage of an early retirement scheme that operated there at the time. Muriel Saidlear has been an activist in the Irish peace movement in such bodies as Trade Union CND and the Peace and Neutrality Alliance (PANA).
He has a sister, Ann, two years younger than himself, who became a teacher and who joined the Presentation Order in Cork as Sister Regina, where she specialised in teaching deaf children. She moved to Pakistan in 1982, where she has worked over subsequent decades as a teacher and health worker with the Kutchi Kohli Christian and Hindu people in Tando Adam and Tando Allahyar in the southern Pakistan province of Sindh.
Select bibliography:
– Roy H.W. Johnston, A Century of Endeavour, Lilliput Press Dublin, 2003; for the
Wolfe Tone Society and the Northern Ireland Civil Rights Movement in the 1960s.
– Raymond Crotty, A Radical’s Response, Poolbeg Press, Dublin 1988; for an
autobiographical account of the Crotty case.
– Ruadhán Mac Cormaic, The Supreme Court, for a discussion of the Crotty case.
– Bob Quinn, Maverick, A Dissident View of Broadcasting Today, Mount Eagle
Press, 2001; for RTE’s involvement with the Coughlan case on broadcasting.
– Anthony Coughlan, C. Desmond Greaves, 1913-1988, An Obituary Essay, Irish
Labour History Society, 1991.
– Frank Keoghan, Ruan O’Donnell and Michael Quinn, editors, A Festschrift for
Anthony Coughlan: Essays on Sovereignty and Democracy, Iontas Press, 2018.
Selected items by Anthony Coughlan
In Defence of the Nation State:Nation, Nationalism, Internationalism, Supranationalism
– basic democratic principles, 2022 ; see www.desmondgreavesarchive.com under
the tab “Cognate Articles” for this and the following article.
Hollowing Out Irish Independence: How the Irish people were made citizens of an
EU Federation, 2021, idem.
Basic Critical facts on the EU, 2023, idem.
C. Desmond Greaves, A Political Evaluation, lecture at the 25th Desmond Greaves
Weekend Summer School, 2013; for this text see www.desmondgreavesarchive.com
‘Ireland, the euro and the economic crisis’, The Citizen magazine, Ireland Institute,
2010.
‘Lisbon’s constitutional revolution by stealth’, The European Journal, London,
December 2009.
What the Treaty of Lisbon Does, National Platform EU Research and Information
Centre document, 2009.
Amsterdam: the outline Constitution of the new EU State, National Platform
pamphlet, 1998.
‘The economics and politics of Raymond Crotty’, in Daltún Ó Ceallaigh, editor, New
Perspectives on Ireland, Leirmheas Publications, Dublin, 1998.
‘Ireland’s Marxist Historians’ in Ciaran Brady, editor, Interpreting Irish History: The
Debate on Historical Revisionism, 1994 (The text of this may now be downloaded
from www.desmondgreavesarchive.com )
C. Desmond Greaves, An Obituary Essay, Irish Labour History Society pamphlet,
1991 (This is also available from the Greaves Archive website mentioned
above.)
Fooled Again? The Anglo-Irish Agreement and After, Mercier Press, Cork, 1986.
EEC Political Union: menace to Irish neutrality and independence, Irish
Sovereignty Movement pamphlet, 1985.
The EEC: Ireland and the making of a superpower, Irish Sovereignty Movement
pamphlet, 1979.
The Common Market, Why Ireland should not join, Common Market Study Group
pamphlet, 1972.
Ireland and the Common Market: the alternatives to membership, Common Market
Study Group pamphlet, 1972.
The Northern Crisis, Which Way Forward?, pamphlet, Solidarity Publications,
1969.
The Case against the Common Market, Wolfe Tone Society pamphlet, 1967.
Anthony Coughlan contributed articles and news items every month to the Connolly Association’s monthly newspaper, The Irish Democrat, between late 1961 and the early 2000s, when that paper ceased regular publication. He also contributed regular articles to the Irish current affair monthly magazine, Village, between 2015 and 2017.
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A note on the 1986/7 Crotty case and the Supreme Court’s judgement on the Single European Act treaty
In the injunction stage of the Crotty case in December 1986 Raymond Crotty’s counsel were significantly assisted by a friend of Anthony Coughlan’s, architect Brendan O’Connor, who researched much of the relevant case-law that was put before Barrington J., and in particular the San Michele case of the ECJ, 1965, which was a useful precedent relating to the issue of the deposit of the instrument of ratification of that treaty. Mr O’Connor was especially interested in the issue of EU encroachment on fundamental rights in the Irish Constitution through the SEA. For the San Michele case see:
In the Supreme Court judgement in the Crotty case in 1987 the majority of the five-member Court found that Part 3 of the Single European Act (SEA) Treaty dealing with foreign policy, which required EC Member States to take part in what the treaty called “European Political Cooperation”, was unconstitutional in that it entailed a surrender of national sovereignty to a quasi-institutional entity, and thus required a referendum of the Irish people before the SEA could be ratified.
In most peoples’ eyes this Part 3 was a relatively marginal part of the treaty, most of whose provisions, as set out in Parts 1 and 2 of the Treaty, were concerned with establishing the European Single Market, extending the areas in which EC law could override national law for that purpose, and introducing qualified majority voting for such areas. Raymond Crotty’s concerns regarding the SEA treaty were primarily with these matters and the bulk of the pleadings of his lawyers dealt with them.
The Supreme Court decision was split into two parts. The first part dealt with the constitutionality of the European Communities (Amendment) Act 1986, which permitted the State to ratify the first two Parts of the Single European Act. This had been put through the Oireachtas before Crotty launched his injunction action, and the Irish President at the time, Patrick Hillery, had signed the Bill into law during the course of the action, that being the final step in the Irish legislative process. This indicated that the President had no doubt as to the constitutionality of the proposed Act, for he would otherwise have been constitutionally obliged to refer it himself to the Supreme Court for judgement on its constitutionality.
The Constitution requires that the Supreme Court hands down a unitary judgement when adjudicating on the constitutionality of an Act of the Oireachtas, without any indication of possible differences of view among its members, and this judgement was given against Crotty in the SEA case on behalf of all five members of the Court.
The second part of the judgement dealt with Part 3 of the SEA. This related to Ireland’s obligations in foreign policy and as this did not challenge the constitutionality of legislation, each judge was free to hand down a separate judgement. On this three of the five judges found in favour of Crotty and two were against him. This majority verdict regarding Part 3 of the SEA meant that the SEA Treaty as a whole could not be ratified unless the people voted to do that in a constitutional referendum.
The reason for this curious and unexpected judgement and for the Court’s approval of what by any objective standard were the radically new provisions of the SEA in Parts 1 and 2 and its decision to require a referendum on the relatively marginal area of possible foreign policy development in Part 3, was Mr Justice Seamus Henchy. Henchy J. was the swing judge in the Crotty case.
If the Court had found Parts 1 and 2 of the SEA to be unconstitutional it would have been an implicit slap in the face for the then Irish President, Patrick Hillery, who had signed the European Communities (Amendment) Bill into law during the course of Crotty’s injunction application, thereby indicating that as President of Ireland he had no doubts regarding its constitutionality.
Presumably all five Supreme Court judges were aware of this consideration, but it particularly influenced Henchy J. who, according to Aidan Browne SC, one of Crotty’s lawyers who knew Henchy well, was a personal friend of President Hillery’s but who also wished to find in favour of Crotty’s contention that the SEA could only be ratified if it had popular approval in a referendum. The solution to this dilemma was not to challenge implicitly what President Hillery had done by signing Parts 1 and 2 of the SEA into law, but to decide instead that Part 3 of the SEA was unconstitutional and that therefore the SEA as a whole could only be ratified if it were approved by the people in a referendum.
Over the years there has been much criticism of the Supreme Court judgement in the Crotty case by Irish advocates of EU supranationalism. They contend that the judgement of unconstitutionality was based on rather flimsy grounds. This note explains how it came about.