This Saturday, Christmas Eve, will be the 25th anniversary of the successful injunction action taken by the late Raymond Crotty, Irish economist and historian, on the European Community’s Single European Act treaty.
The FitzGerald-Spring Government which held office in 1986 had purported to ratify this Treaty, which established the European Community’s “single market”, by majority vote of the Oireachtas and refused repeated public calls for a referendum as the only constitutionally proper way to ratify it.
Raymond Crotty contended that once the SEA was ratified his rights and those of other Irish citizens to decide important areas of public policy would be transferred to Brussels and that only the Irish people themselves could make such a surrender of sovereignty in a constitutional referendum, as it is the people, not the politicians, who are the repositories of sovereignty under the Irish Constitution.
At 5 p.m. that Christmas Eve High Court Justice Mr Donald Barrington injuncted the State from ratifying the SEA pending trial of Raymond Crotty’s contention. Judge Barrington gave his judgement in the funereal gloom of a darkened Four Courts, with the judge and the lawyers in civies because it was outside official law term, and a couple of bored policemen standing around wondering when they would get home. News of the Crotty injunction was the first item on the radio news the Christmas morning following and was widely reported internationally.
Raymond Crotty’s substantive action on the Single European Act was subsequently rejected in the High Court on locus standi grounds – namely that the plaintiff had failed to show that he himself would be affected by the SEA. On appeal to the Supreme Court the late Mr Justice Brian Walsh remarked that Mr Crotty’s locus standi was like the proverbial Dutch boy standing with his finger in the dyke – holding back the flood of supranational legislation the SEA could be expected to engender!
In a three/two majority judgement the Supreme Court finally ruled in Crotty’s favour by laying down the principle that any surrender of sovereignty to the EU institutions could only be done by the Irish people themselves by referendum. The Court ruled that such a surrender was entailed by Title III of the Single European Act, which committed the State to closer European cooperation in foreign policy.
There was surprise at the time that the Court had declined to support Crotty’s contention that the scope and objectives of the original EEC, which the people had voted to join in the 1972 Accession referendum, were being significantly widened by the proposed Single European Act Treaty. In a unitary judgement the Court decided that the many substantive matters in the Single European Act which were of particular concern to Crotty himself and which had taken up most of the time in the court pleadings, were implicitly covered by the original “license” given by the people in the 1972 Accession referendum that permitted the State to join a “developing” European Community.
If the Supreme Court had adjudged these areas of the Single European Act to be unconstitutional, it would have been an implicit slap in the face to Ireland’s then President, Patrick Hillery, for failing to refer to the Supreme Court the European Communities Bill 1986, which had previously been put through the Oireachtas, for a judgement on its constitutionality. This Bill purported to bring the relevant provisions of the SEA into Irish domestic law.
The late Mr Justice Seamus Henchy was the “swing judge” in the five-man Supreme Court. Judge Henchy agreed with Raymond Crotty’s contention that the Single European Act overall could only properly be ratified by referendum. At the same time he did not want to make an implicit finding that President Patrick Hillery had failed in his constitutional duty by not referring the domestically relevant provisions of the SEA, legislated for in the 1986 European Communities Act, to the Supreme Court.
The compromise Justice Henchy came to was that he provided the majority for the Court’s unitary judgement on the European Communities Act which decided that the original license from the people permitting the State to join the EEC in 1972 was wide enough to encompass the domestically relevant provisions of the Single European Act, while he came down in favour of Crotty on the SEA’s foreign policy provisions, which did not require Oireachtas legislation.
These facts regarding the background to the three/two Crotty judgement of the 1987 Supreme Court are not widely known.
Mr Justice T A Finlay, who was then Chief Justice and who ruled against Crotty on all areas of the SEA, is the only survivor of that five-man Supreme Court. The members of Crotty’s legal team, who gave their services on a pro bono basis, were Paul Callan SC, Seamus O Tuathail SC, Eoin MacGonigal SC and the late Aidan Browne SC and Antonia O’Callaghan BL.
Cork solicitor Joe Noonan of the firm Noonan, Lenihan, Coffey, devised the legal argument on Title III of the Single European Act, which was upheld by the majority verdict of the Supreme Court in the Crotty case.
The Single European Act was approved by the people by constitutional referendum in May 1987. This was the referendum in which the Irish Government decided for the first time to use large sums of public money to push the Yes-side case – an action which Governments repeated in the 1992 Maastricht Treaty referendum that gave rise to the euro-currency and in a number of other referendums, but which was judged to be unconstitutional by the Supreme Court in the 1995 McKenna case.
So one can validly say that the Yes-side victories on these occasions were secured at least in part by unconstitutional means.
The Crotty case delayed the coming into force of the Single European Act by six months, as all the other European Community Member States had ratified the SEA at the time Crotty applied for his injunction. Mr Justice Barrington’s judgement on Christmas Eve 1986 delayed the champagne corks popping in Brussels for the SEA’s coming into force one week later, as had been originally envisaged.
Raymond Crotty(1925-1994) was perhaps the most original economic thinker in 20th century Ireland.
Much of the large volume of work on 19th Irish economic history which has been written since the 1960s may validly be regarded as footnotes to his seminal book “Irish Agricultural Production, Its Volume and Structure” (1966). Professor Joe Lee has characterised this work as “a monument of the Irish intellect”. Crotty’s later research on cattle production in different countries around the world and on world economic history and pre-history has attracted significant academic attention in recent years and been praised by distinguished international scholars for its originality and insightfulness.
Raymond Crotty’s most important book, which sets out his conclusions on world history and pre-history, is the posthumously published “When Histories Collide: the development and impact of individualistic capitalism” (Rowman and Littlefield Publishers, Oxford, 2001) and is still in print. He wrote an autobiography, “A Radical’s Response” (Poolbeg Press, 1988), which describes the genesis and course of his constitutional action.
Director The National Platform EU Research and Information Centre