Wednesday, 24 February 2016


On Monday, February 22nd 2016, the Supreme Court resumed its hearing of the challenge by Joan Collins TD into the constitutionality of the €31bn Promissory Note debt.

First on his feet, to finish where he had left off on Thursday last and to summarise his argument, was John Rogers SC, acting on behalf of Joan. He had been granted that extra time – ten minutes – by Chief Justice Susan Denham. John being John, ten became 15 became 20, until eventually the amiable Susan’s gentle reminders took effect…

He used that time to good effect however, reinforcing his already forceful argument of last Thursday that in assuming sole responsibility in signing off on the Promissory Notes that put Ireland on the hook for €31bn of debt, then Finance Minister also assumed a responsibility that exceeded his authority and his government’s authority under the Constitution. 

To digress for a paragraph: This is the same €31bn the ECB insists that under rule, and because Anglo didn’t come good on those billions, must now be taken back out of circulation. They have ‘called in’ the government Promissory Notes, so to speak, and that €31bn is currently being borrowed in stages by our National Treasury Management Agency, given to our Central Bank and being destroyed by them. Already €6bn has been borrowed and destroyed, €2bn of that last year alone, with €25bn still being held and awaiting the same fate – those are 25 billion good reasons why we in the Ballyhea Says No campaign will this Sunday complete five years of weekly marching and continuous campaigning, in parallel with what Joan Collins, David Hall and John Rogers are doing in the Four Courts. If we lose, that entire debt, plus the interest, is loaded onto the shoulders of future generations – in 2016, this is not the legacy we want to leave our kids. It’s a fight we may not win, we’re aware of that, but at least we’re ENGAGING; our government surrendered without even an argument, never mind a fight.

Anyway, back to John Rogers. Article 11 of the Constitution is what John using to underpin his argument, which goes as follows:

All revenues of the State from whatever source arising shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes and in the manner and subject to the charges and liabilities determined and imposed by law. 

Because the Promissory Notes were never voted on by the Dáil, never mind approved ‘subject to the charges and liabilities determined and imposed by law’.

There are no exceptions to this, he argued, and on Monday, used several examples from the German Courts and the German Constitution (which is similar in that context to ours) to bolster his argument.

The ball was then in Michael McDowell’s court, also a Senior Counsel, also a former Attorney General but given that he is also a former Minister for Justice, trumping Mr Rogers in the ‘honours’ department.

He is a formidable debater, is Michael McDowell, more fluid in his delivery than the ultra-painstaking John Rogers, more casual even in his stance, lifting his knee occasionally to rest against the lectern from which he was speaking.

He began early with a claim that an opinion on the Promissory Notes expressed in the Dáil was automatically the opinion of the Oireachtas and thus satisfied the conditions of Article 11. Maybe I misheard, maybe I misinterpreted, but those around me were of the same opinion I had reached, that as an assumption on which to base the power of one person to assume any debt for any length of time on behalf of a nation, this was a hell of a stretch!

He then went on to outline what he saw as legal precedent after legal precedent for the Promissory Note, including (on a couple of occasions) the pay and pension of the Judges themselves, set in Statute but the amount for which is not set in stone.

The way the Court seems to operate is that each side gets their own time to argue their case, so just as Michael had to sit through John’s presentation, so John now had to bite his tongue as Michael took his shots.

Those of us watching all this though had our own thoughts and I couldn’t help wondering – NONE of the precedents presented by Michael McDowell matched the Promissory Notes, not in the scale of the exposure, not in the fact that all those other examples would have been debated in the Dáil at some stage, not in the fact that Brian Lenihan had time and opportunity to present the Promissory Notes to the Dáil for its consideration but didn’t (for whatever reason). He brought up for example a putative tunnel connection between Ireland and Wales, the cost for which would have to be committed to by one Dáil but the annual payments for which would be passed on to future generations, without the power to reject those payment – surely though the original ‘spend’ would have been debated and approved by the Oireachtas, no?

While none of us could voice those questions, the same doesn’t apply to the Judges and boy, did they give Mr McDowell a going over, so much so that on occasion he was reduced to near silence, had to concede he was unable to give an answer. As Michael was arguing at one stage that the Dáil, which hadn’t had any opportunity to debate the Promissory Notes, could merely give the nod to the subsequent payments (the annual destruction of money), Judge Charleton interrupted with an interesting analogy, ‘So in household budget terms, the Oireachtas can debate the groceries but not the mortgage?’.

There was one argument put by Mr McDowell that may have major significance later, when this case ends up in the European Court of Justice (as I think is inevitable, should it be lost). Monetary financing – direct central-bank funding of government expenditure – is expressly prohibited by the ECB. In his presentation Mr McDowell reiterated something that had been said during the High Court hearing, that the instant the Promissory Notes were issued they became capital, an infusion of finance into the then insolvent Anglo Irish Bank. This capital came from the Emergency Liquidity Assistance fund, those funds drawn down by the Central Bank of Ireland. What was that if not monetary financing? What was that if not a blatantly illegal use of a fund that was to be used – explicitly, by ECB rule – ONLY for solvent institutions?

Just over a month ago a group of us from the Ballyhea/Charleville campaign, in company with two TDs and an MEP (Joan Collins, Catherine Murphy and Marian Harkin, respectively), met the new Governor of the Central Bank of Ireland, Phillip Lane, and he argued that the Promissory Notes made Anglo solvent – if the Promissory Note and the capital injection were simultaneous, how can that be?

This is just a very brief overview of what was an intense four-hour presentation, and just a layman’s overview at that of what were very detailed legal arguments, so please bear that in mind.

As outlined in the report of the first day’s proceedings, this is a case of enormous significance for us all. A win for Joan Collins and it means the Promissory Note debts were unconstitutional, that debt illegal; a loss, and it means that any and all future Ministers for Finance can assume – on his her/his own – responsibility for any amount of debt for the State. That’s kind of important like…

For those of us who have been following the case there will be yet another day out in the Supreme Court, when John Rogers will have his final say. Then will come the deliberations, the seven Judges going beyond what was presented to them and digging out their own precedents, using their own considerable separate and joint experience.

Whatever people’s own experiences of the lower courts in this country, where the administration of ‘justice’ can be haphazard at times (depending on the individual judge, even the mood on that particular day), the Supreme Court is impressive, very impressive.

Stay tuned…