British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sherwin v. Minister for Environment [1997] IEHC 208 (11th March, 1997)
URL: http://www.bailii.org/ie/cases/IEHC/1997/208.html
Cite as: [1997] IEHC 208
[New search] [Printable RTF version] [Help]
Sherwin v. Minister for Environment [1997] IEHC 208 (11th March, 1997)
High
Court
Sherwin
v Minister for Environment, Ireland & Attorney General
2661
PI of 1996
11
March 1997
COSTELLO P:
COSTELLO P:
INTRODUCTION.
The Fifteenth Amendment of the Constitution (No 2) Bill was passed by the two Houses of the Oireachtas on the 18 October 1995. The Constitutional amendment proposed was the deletion of the Constitutional prohibition of civil divorce, a proposal which could only be adopted by a favourable vote in a referendum held under the Referendum Act, 1994. Polling took place on the 24 November 1995 and, after a recount, it was declared that the proposal had been carried by 818,842 votes in favour and 809,728 votes against. The Constitution was accordingly amended.
The plaintiff in these proceedings had vigorously campaigned against the proposal. She was a member of an umbrella organisation which contained a number of different groups of persons with similar views. In the course of the campaign a matter of serious concern to her and her associates arose; she ascertained that by section 26 of the Referendum Act, 1994 only members of the Oireachtas could appoint personation agents and agents to monitor the counting of votes. As she had no access to members of the Oireachtas and as all political parties represented in the Oireachtas were supporting the amendment which she opposed, she felt aggrieved. By letter of the 11 November 1995 she complained of these provisions to the Minister for the Environment and requested him to exercise his statutory powers to rectify the defects she identified. By letter of the 15 November 1995 the Minister stated that he had no power to adopt the requested measures. This is the first ground of complaint in this action -- the plaintiff urges that he has misconstrued his statutory powers. But she also claims that section 26 of the Referendum Act 1994 infringed the Constitution and she has claimed declaratory and other relief. She has not sought to have the referendum declared invalid. She applied, ex parte, for leave to institute proceedings by way of judicial review. This was refused on the 19 December 1995 and this refusal was confirmed on the 23 February 1996 by the Supreme Court. As a result a plenary summons was issued on the 22 March 1996 in which declaratory relief is sought and after the usual pleadings an order by consent was made on the 14 October last providing that the trial be heard on affidavit.
Before referring to the relevant facts and, in more detail, to the issues that arise I will set out the constitutional and statutory provisions relevant to these issues.
THE LAW.
(a) The Constitution.
Article 46 of the Constitution provides that any provision of the Constitution may be amended in the manner provided in that Article. Every proposed amendment is to be passed by both Houses of the Oireachtas and then submitted by Referendum to the decision of the people,
"in accordance with the law for the time being in force relating to the Referendum".
The President can only sign and promulgate into law a Bill to amend the Constitution when satisfied that the provisions of Article 46 have been complied with and that the proposal "has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution".
Article 47 deals with the Referendum. It provides that every proposal to amend the Constitution which has been submitted by Referendum for decision of the people shall be "held to have been approved by the people if a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law". Every citizen who has the right to vote at an election from members of Dail Eireann is entitled to vote at a Referendum. Subject to the provision of Article 47,
"the Referendum shall be regulated by law".
The laws enacted by the Oireachtas under the powers to regulate the holding of referenda are now to be found in the Electoral Act, 1992 and the Referendum Act, 1994.
(b) The Statutes.
(i) Part XI of the Electoral Act 1992 makes provision for the appointment of agents by candidates standing for election to Dail Eireann. Section 59 allows a candidate to appoint one election agent and section 60 permits a candidate or his election agent to appoint "agents to be present on the candidate's behalf" at the issue of ballot papers to postal voters, in polling stations, at the opening of postal ballot boxes and at the counting of the votes".
This section also makes specific provision for an agent referred to as a "personation agent". Sub-section 3 provides as follows:-
"A candidate or his election agent may appoint one person (in this Act referred to as a personation agent") to be present as the candidates agent in each polling station for the purpose of assisting in the detection of personation, and such appointment shall be in writing".
The Act makes a distinction between a "polling place" and "polling stations" and section 94 obliges the returning officer at every polling place to provide "a sufficient number of polling stations, conveniently distributed for the accommodation of Dail electors entitled to vote there" (see section 94). These "polling stations" are in fact the tables at which electors attend to obtain their ballot papers and the effect of section 60(3) is to entitle every candidate to appoint a personation agent at each polling station in the constituency in which he is a candidate.
Apart from the general duty imposed on personation agents to assist "in the detection of personation" contained in section 26(3) there are specific statutory rights and functions conferred on such agents. By the 1992 Act; a right to be admitted to the polling station (section 98(d); a right to request that certain questions be put to incapacitated persons (section 103(4); a right to have a voter challenged (section III(2)(b)(i)) and in certain circumstances to have arrested a person who has committed personation (section 105(2)). These rights are also conferred on personation agents appointed for the purposes of the poll at a referenda (section 32(1)) of the 1994 Act.
The Referendum Act 1994 (section 33) confers (subject to modification) on agents attending the count at referenda certain functions and rights conferred by the 1992 Act on agents attending general election counts on behalf of candidates, namely the right to be present through the count (section 113(2); the right to facilities for overseeing the counting of votes including facilities for satisfying themselves that the ballot papers had been correctly sorted; the right to be present for the opening of the ballot boxes (section 114(1). In addition there is a specific right conferred by section 36(1) permitting an authorised agent to obtain a partial or total recount of votes.
(ii) Referendum Act 1994.
The power to appoint personation agents and agents to attend at the counting of votes in referenda is different to that in the 1992 Act as there are, of course, no "candidates" in a referendum. Instead provision is made in the 1994 Act for the appointment of agents at the counting of votes and "personation agents" at the poll by a member of the Dail for the Constituency in which the referendum is being held and any member of the Senate.
Section 26(1) provides;
"A member of the Dail for the constituency and any member of the Senate may appoint agents to be present --
(a) At the issue of ballot papers to postal voters,
(b) At the opening of the postal ballot boxes,
(c) At the counting of the votes".
Sub-section 3 makes provision for personating agents as follows.
"A member of the Dail for the constituency and any member of the Seanad may appoint one person (in this Act referred to as a "personation agent" to be present as his agent in each polling station for the purpose of assisting in the detection of personation, and such appointment shall be in writing".
The section goes on to provide (sub-section 6) that the member of the Dail for the constituency and a member of the Seanad shall at least two days before polling day give written notice to the local returning officer for the constituency concerned of the name and address of every personation agent appointed by that member together with the name of the polling station for which the personation agent is appointed. Similar notice is to be given of the name and address of every agent appointed for the counting of votes (sub- section 8).
(iii) Electoral Act 1992 section 164.
Central to the issues in this case is the power of the Minister for the Environment to make adaptations or modifications by ministerial order where there is an "emergency" or "special difficulty". Section 164(1) provides as follows:
"The Minister may, in any case in which it appears to him that there is an emergency or special difficulty, by order make such adaptation or modification of any statute, order or regulation relating to the registration of Dail elections, Presidential electors, Seanad electors, European electors or Local Government electors or the conduct of Dail elections, Presidential elections, Seanad elections, European elections, Local Government elections or referenda as may in his opinion be necessary to enable such registration to be duly carried out or such election or referendum to be duly held, subject to compliance with the principles laid down in the relevant acts taken as a whole". (emphasis added)
Sub-section 2 provides that every order made under the section shall be laid before the houses of the Oireachtas and may be annulled by resolution passed by either house of the Oireachtas within 21 days after the house has sat or next after the Order had been laid before it.
The first issue that arises is whether the Minister had power by virtue of section 164 to do what the plaintiff urges he was required to do in this case to meet her objections to section 26 of the 1994 Act.
THE FACTS.
(a) The most important fact relevant to the plaintiff's case is that all the political parties represented in the Oireachtas supported the proposed constitutional amendment contained in the Fifteenth Amendment. The consequence of this was that those who opposed the amendment found it necessary to associate together by the establishment of ad hoc organisations to campaign to persuade the electorate to reject the proposed amendment as there was no organised political party doing so which they could support. A further consequence was this. As most members of the Oireachtas were members of political parties who supported the amendment those groups campaigning to oppose the amendment had no access, through association in a political party, to those persons designated by section 26 of the Referendum Act 1994 to appoint personation agents and agents to assist at the count. This meant that those associated to oppose the amendment were, to a considerable degree, dependant on the goodwill of a small number of independent member of the Oireachtas to obtain the nomination of agents under section 26. They experienced considerable difficulty in doing so, although a limited number of personation agents and a limited number of agents at the count were nominated at the request of opposition groups.
(b) The plaintiff claims that the circumstances surrounding the referendum on the Fifteenth Amendment constituted circumstances of "special difficulty" within the meaning of section 164 of the 1992 Act and in support of this contention she referred to the special difficulties she encountered in attempting to appoint personation agents and agents to attend the count on behalf of the opposition group with which she was associated. On the 23 October 1995 she was informed (correctly) by a member of the staff of the County Sheriff's office in Dublin that a letter of authorisation for the appointment of personation agents was required but, (incorrectly) that as regards the count centres the Sheriff had a discretion about the issuing of authorisations and that no problem would be encountered. On the 9 November 1995 she called to the office of the city Sheriff and complained about the procedures which required her to apply to a member of the Oireachtas for an authorisation to appoint personation agents and explained her reasons. She was given a copy of an official document which set out the legal requirements of the 1994 Act. As a consequence she then wrote a letter on the 11 November 1995 to the Minister and he replied on the 15 November. I will return to this correspondence later. On the 22 November she was informed in the office of the County Sheriff that an authorisation from a member of the Dail for the constituency or a member of the Senate was required to authorise an agent to attend the count. She telephoned a senator of her acquaintance and obtained from him authorisations for personation agents but, in error, he failed to give her authorisations for attendance at the count. She returned to the Sheriff's office where she met three persons who informed her that the authorisation for the count had to be signed by a senator who was resident in the constituency (this was incorrect) and that in relation to the senator whose name she had given the Sheriff's agent told her that "he had signed enough already" and her request for passes for the count was refused. In the event the group of which she was a member obtained a limited number of passes from the city Sheriff for the counting of votes which were under his control. She claims that the number of agents who received authorisations for the opposition groups with which she was associated were entirely inadequate to enable a proper supervision of the count to take place. She endeavoured to obtain evidence of what had occurred in other parts of the country and wrote to all local returning officers seeking information. The reply she received did not contain any information relevant to these proceedings.
(c) She failed in a request to the Director of Public Prosecutions that he apply for leave to bring a referendum petition. Her solicitor then wrote to the Minister on the 13 December 1995 referring specifically to his powers under section 164 of the 1992 Act. By a reply of the 4 January 1993 her solicitor was informed by the Minister's Private Secretary that the Minister had no proposal for the amendment of section 26 of the Referendum Act 1994.
(d) Her application for leave to issue proceedings for judicial review was refused by the High Court on the 19 December 1995. Her appeal against this refusal to the Supreme Court was refused on the 23 day of February, 1996. Later these proceedings were commenced by Plenary Summons.
(e) I turn now to the request made by the plaintiff to the Minister for measures to be taken by him to remedy the matters of which she complained. It was contained in a letter of the 11 November 1995, which reads as follows.
"Dear Minister,
Fifteenth Amendment to the Constitution Bill 1995 Personation Agents: Appointed by members of the Oireachtas persons appointed to observe postal ballot & both counts.
Urgent action is necessary to address the deficiency in the Electoral Act 1992 to Electoral (Amendment) Act 1995 and the Referendum Act 1994.
Opposition groups to the Fifteenth Amendment are excluded from appointing Personation Agents at each polling station and from attending at Count Centres without an authorisation from members of the Oireachtas. (Sec 68(1)/1992 and Sec 113/1992) and (Sec 26(1) & (2)/1994 and Sec 26(3) & (6)/1994).
You are requested urgently to make provision by way of emergency regulation, to ensure that the Referendum can be monitored by those groups opposed to the Amendment. It is essential that any Referendum is free and fair and is seen to be so.
The present position is that all parties in the Oireachtas are supporting the Amendment. Those who are against Divorce and the people campaigning on their behalf, are in obvious danger of being excluded from their democratic right of monitoring the Referendum by the fact that they must obtain authorisation from a member of the Oireachtas who is in favour of the Amendment.
In the circumstances you are asked urgently to address this anomalous situation by taking all legislative and regularity measures necessary."
The Minister replied to this letter on the 15 November in the following terms;
"Dear Miss Sherwin,
I have been asked by Mr Brendan Howlin TD, Minister for the Environment to refer to your letter of 11 November, 1995 in relation to the appointment of personation agents and agents to attend the counting of votes at the forthcoming referendum.
The law in relation to the appointment of such agents at a referendum is set out in section 26 of the Referendum Act 1994. Under that provision, a member of the Dail for the constituency and any member of the Seanad may appoint a person to be present as a personation agent at a polling station in the constituency or to attend at the counting of votes.
The Minister has no power to alter this provision by regulations. There are no proposals to provide for the amendment of the provision by legislation."
THE FIRST ISSUE (ADMINISTRATIVE LAW).
The first issue I propose to consider is the power conferred on the Minister by section 164 of the Electoral Act 1992. My conclusions are as follows.
(1) The power conferred by the Minister is a discretionary one -- he "may" in any case in which it appears to him that there is an "emergency or special difficulty" make an order as provided in the section.
(2) The power may only be exercised in the circumstances specified in the section, namely when it appears to him that there is an emergency or special difficulty.
(3) The power conferred is by order to make "such adaptation or modification" of any "statute order or regulation" referred to in the section. This includes the power to make an order modifying any Acts dealing with referenda. If in his opinion it is necessary to enable referenda "to be duly held" he may make an order under the section, but this must comply with the "principles" to be found in the Acts dealing with referenda.
(4) Once the Minister is satisfied that a "special difficulty" has arisen in relation to the holding of a Referendum he, quite clearly, has power to modify the 1992 Act in so far as it is necessary to enable a Referendum to be duly held. Section 26 of the 1994 Act confers an exclusive power to appoint the agents referred to in it on members of the Oireachtas. In my opinion, should he conclude that circumstances of a "special difficulty" exists he has p6wer to modify the section so as to enable additional agents to be appointed by means other than those provided for in the section if this is necessary to enable a Referendum to be duly held.
(5) Should a special difficulty arise in the counting of votes as a result of the operation of section 26 of the 1994 Act it would be open to the Minister to hold that this special difficulty could result in the Referendum not being duly held and accordingly his statutory power would include a power to modify the provisions of section 26 relating to the appointment of agents at the counting of votes.
In the light of these conclusions I turn now to the facts of the case.
It seems to me that the Minister's letter of the 15 November 1995 given in response to the plaintiff's request to redress the complaints contained in her letter of the 12 November 1995 shows that he had misconstrued his Ministerial powers. I cannot agree with the submission made on his behalf that from this letter it is to be inferred that he had taken a decision that no "special circumstances" had arisen and that he was merely pointing out that he had no power to amend the statute. This letter can only be construed as an opinion that the only way in which he could remedy the plaintiffs grievance was by amending the Referendum Act 1994 and he did not propose to do so. But section 164 of the Electoral Act 1992 gave him power to modify the 1994 Act and so it would appear that the Minister had disabled himself from considering whether or not he should exercise his discretionary powers under section 164.
Order 84 Rule 18 of the Rules of Court provide that an application for an order of certiorari and/or mandamus "shall be made by way of an application for judicial review in accordance with the provisions of this order" and Order 84 Rule 20(1) provides that no application for judicial review may not be made "unless leave of the court has first been obtained" in accordance with the Rule. In this case the plaintiff was refused leave to apply for an order of certiorari and so in these proceedings the court has no jurisdiction to entertain an application that the Ministerial decision contained in the letter of the 15 November 1995 be quashed. Likewise, the court has now no jurisdiction to grant an order of mandamus directing the Minister to make an order modifying the section in the manner requested by the plaintiff or otherwise.
The refusal of leave to institute judicial review proceedings does not, of course, bar the plaintiff claiming a declaratory order in these plenary proceedings, as she has done. I am satisfied that she has made out grounds for declaratory relief. The Minister has misconstrued the section. The possibility that other referenda will take place in circumstances similar to those relating to the Fifteenth Amendment is not a fanciful one and the issue raised by the plaintiff may well arise again. It is therefore proper that the court should clarify the Minister's legal powers. I propose, therefore, to make the following declaration:-
"Should a request be made to the Minister that the power to appoint agents under section 26 of the 1994 Act be extended to permit their appointment otherwise than exclusively by members of the Oireachtas the Minister has jurisdiction under section 164 of the Electoral Act, 1992 to consider whether there exists circumstances of special difficulty arising from the operation of the power of appointment contained in the section. Should he decide that circumstances of special difficulty do arise he may modify section 26 by providing by Ministerial Order that the power of appointment should be exercised by persons or groups in addition to the persons mentioned in the section. This power includes a power to modify the provisions of the section relating both to the appointment of personation agents and those relating to agents to attend the counting of votes.
THE SECOND ISSUE (CONSTITUTIONAL LAW).
The plaintiff has claimed that if she is not entitled to an order of mandamus directing the Minister to exercise his powers under section 164 in the manner she urges then she is entitled to an order that the section is unconstitutional.
The plaintiff's claim is that the Act became unconstitutional in the circumstances surrounding the enactment of the Fifteenth Amendment, namely that all the political parties represented in the Oireachtas supported the proposed amendment and opposition to it was organised by groups of citizens who associated for this purpose and who campaigned to persuade the electorate to reject the proposal resulting in very limited appointments of agents under section 26 by those opposing the amendment. Let me assume for a moment that the statute became constitutionally defective in the way alleged. It does not follow, however, that the statute is therefore constitutionally invalid. Section 164 of the 1992 Act contained a statutory mechanism for dealing with "special circumstances" by Ministerial Order. A factual development which produces a constitutional defect can properly be regarded as "special circumstances" within the meaning of the section. As already pointed out, the Minister has power to remedy this defect. Now that the court has made clear that he is legally entitled to do so the court must assume that the Minister will exercise his powers in a constitutional manner. If the Act is unconstitutional it must assume that the Minister will act to remedy this defect. A statute which contains a built-in remedial mechanism to remedy possible constitutional invalidity in its operation is not, in my opinion, an unconstitutional statute.
Notwithstanding the view which I have just expressed, in deference to the very full legal argument which has been advanced on both sides and because the parties may wish to have a judgment now on the issues raised rather than leave them for possible adjudication in later proceedings I propose to express my views on the substantiative constitutional issues which have been raised.
Constitutional invalidity, it is urged, arises in two ways (1) section 24 infringes the constitutionally guaranteed personal rights of the plaintiff and (2) the statute infringes the constitutional provisions relating to the referendum.
As to (1), Article 40(1) provides that "all citizens shall, as human persons, be held equal before the law" and the plaintiff's claim is that the section imposes a detriment on groups of citizens associated to oppose the proposed amendment which is not imposed on groups of citizens associated in political parties and who have representatives of their political parties in one or other houses of the Oireachtas. The detriment is that the plaintiff's group have great difficulty in appointing the agents referred to in section 26 which those groups supporting the amendment do not experience. This inequality, it is said, is a serious one and infringes Article 40(1) of the Constitution.
With regard to personation agents, this argument is based, in my opinion, of a misunderstanding of the Article and the section. The Supreme Court has explained that the guarantee in Article 40(1) is not a guarantee of absolute equality for all citizens in all circumstances, but is a guarantee of equality as human beings and a guarantee against inequalities based on an assumption that some individuals because of their human attributes ethnic, racial, social or religious background are to be treated as inferior or superior of other individuals in the community (Quinns Supermarket Ltd v Attorney General [1972] IR 13). Personation agents are appointed under the section not for the purpose of enabling political parties or groups of persons associated to campaign in referenda to detect or deter personation by their political opponents - they are appointed to assist returning officers in ensuring compliance with the law against personation. No political rights derived from the constitution which the plaintiff may enjoy are infringed by this provision nor is the equal enjoyment of any of her constitutionally protected rights diminished. There is, of course, a difference of treatment of the two political groupings involved in the campaign but it is one derived from the operation of administration machinery established for the appointment of agents and is not based on any distinction which has been derived from an assumption that persons in one group are inferior or superior in some respect to those in another. The section does not, in my opinion, infringe any of the plaintiff's Article 40 rights.
In particular I cannot agree that any right which the plaintiff may possess to fair procedures in the political process is infringed by the section.
With regard to the appointment of agents at the count, again no guaranteed personal right of the plaintiff or her associates is breached by the provisions of the section. Agents are appointed to help returning officers count the votes properly -- not to detect possible malpractice by political opponents. The difference of treatment which in the appointment of agents between the groups supporting and those opposing the amendment arose from the operation of administrative machinery established by statute and was not based on any considerations relating to the personal characteristics of the individuals comprising the groups. The limitations arising from the operation of this machinery did not impinge on any political rights which the plaintiff may enjoy, or any right to fair procedures derived from the Constitution.
I will consider now the argument that even if the plaintiffs rights were not infringed the Referendum Act 1994 infringed the constitutional provisions relating to referenda.
It is submitted on behalf of the plaintiff that by enacting section 26 the Oireachtas invalidly interfered with the manner in which the constitution requires referenda to be held and that the section is therefore unconstitutional. In support of this particular submission reliance is placed on the decision of the Supreme Court in McKenna v An Taoiseach [1995] 2 IR 1. This was a case concerning the funding out of proceeds of taxation by the government of an advertising campaign to attempt to influence the electorate to support the proposed amendment of the constitution. The Supreme Court held that this was an unconstitutional interference with the referendum process as required by the Constitution. The plaintiff urges that section 26 offends more seriously than did the wrongful act in McKenna -- that act merely interfered with the election campaign whereas the impugned section interferes with the voting procedures of the referendum. It is claimed that the Oireachtas wrongly arrogated to its own members the power to nominate personation agents and agents to monitor the count and that this interfered with the democratic process by which the people itself decides every issue relating to the amendment of the Constitution. I cannot agree. The appointment of agents to assist in deterring and in detecting possible personation and to assist in ensuring that the count is conducted according to law does not "interfere" with the democratic process -- it assists it. The appointment of such agents by members of the Oireachtas cannot in itself be considered an "interference" in the democratic process. I have already explained why the law does not infringe any constitutional concept of equality or of any constitutional requirement that electoral procedures be fair. The facts of this case are entirely different to those in McKenna and I must reject the submission based on it.
Finally, it was suggested that because the count was not held in public and open to all members of the public to attend the section was unconstitutional. The constitution permits the Oireachtas to regulate the manner in which referenda are held and there are obvious practical reasons why access to the count should be limited in some fashion. There can be no possible constitutional objection to doing so.
I should add that I did not read all the foreign statutes which counsel supplied me with as unfortunately I was unable to read the language in which some were printed. The documents established very clearly how varied are the statutory provisions relating to the holding of elections and referenda in different states, but I do not think that they assist in establishing that the measure adopted in this jurisdiction infringed the Irish Constitution.
The fact that the section is constitutionally valid does not mean that the Minister cannot decide that circumstances of special difficulty have arisen in the operation of section 24 of the 1994 Act and that remedial action is required should he be asked to exercise his powers under section 164 of the 1992 Act.
The Fifteenth Amendment of the Constitution (No 2) Bill was passed by the two Houses of the Oireachtas on the 18 October 1995. The Constitutional amendment proposed was the deletion of the Constitutional prohibition of civil divorce, a proposal which could only be adopted by a favourable vote in a referendum held under the Referendum Act, 1994. Polling took place on the 24 November 1995 and, after a recount, it was declared that the proposal had been carried by 818,842 votes in favour and 809,728 votes against. The Constitution was accordingly amended.
The plaintiff in these proceedings had vigorously campaigned against the proposal. She was a member of an umbrella organisation which contained a number of different groups of persons with similar views. In the course of the campaign a matter of serious concern to her and her associates arose; she ascertained that by section 26 of the Referendum Act, 1994 only members of the Oireachtas could appoint personation agents and agents to monitor the counting of votes. As she had no access to members of the Oireachtas and as all political parties represented in the Oireachtas were supporting the amendment which she opposed, she felt aggrieved. By letter of the 11 November 1995 she complained of these provisions to the Minister for the Environment and requested him to exercise his statutory powers to rectify the defects she identified. By letter of the 15 November 1995 the Minister stated that he had no power to adopt the requested measures. This is the first ground of complaint in this action -- the plaintiff urges that he has misconstrued his statutory powers. But she also claims that section 26 of the Referendum Act 1994 infringed the Constitution and she has claimed declaratory and other relief. She has not sought to have the referendum declared invalid. She applied, ex parte, for leave to institute proceedings by way of judicial review. This was refused on the 19 December 1995 and this refusal was confirmed on the 23 February 1996 by the Supreme Court. As a result a plenary summons was issued on the 22 March 1996 in which declaratory relief is sought and after the usual pleadings an order by consent was made on the 14 October last providing that the trial be heard on affidavit.
Before referring to the relevant facts and, in more detail, to the issues that arise I will set out the constitutional and statutory provisions relevant to these issues.
THE LAW.
(a) The Constitution.
Article 46 of the Constitution provides that any provision of the Constitution may be amended in the manner provided in that Article. Every proposed amendment is to be passed by both Houses of the Oireachtas and then submitted by Referendum to the decision of the people,
"in accordance with the law for the time being in force relating to the Referendum".
The President can only sign and promulgate into law a Bill to amend the Constitution when satisfied that the provisions of Article 46 have been complied with and that the proposal "has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution".
Article 47 deals with the Referendum. It provides that every proposal to amend the Constitution which has been submitted by Referendum for decision of the people shall be "held to have been approved by the people if a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law". Every citizen who has the right to vote at an election from members of Dail Eireann is entitled to vote at a Referendum. Subject to the provision of Article 47,
"the Referendum shall be regulated by law".
The laws enacted by the Oireachtas under the powers to regulate the holding of referenda are now to be found in the Electoral Act, 1992 and the Referendum Act, 1994.
(b) The Statutes.
(i) Part XI of the Electoral Act 1992 makes provision for the appointment of agents by candidates standing for election to Dail Eireann. Section 59 allows a candidate to appoint one election agent and section 60 permits a candidate or his election agent to appoint "agents to be present on the candidate's behalf" at the issue of ballot papers to postal voters, in polling stations, at the opening of postal ballot boxes and at the counting of the votes".
This section also makes specific provision for an agent referred to as a "personation agent". Sub-section 3 provides as follows:-
"A candidate or his election agent may appoint one person (in this Act referred to as a personation agent") to be present as the candidates agent in each polling station for the purpose of assisting in the detection of personation, and such appointment shall be in writing".
The Act makes a distinction between a "polling place" and "polling stations" and section 94 obliges the returning officer at every polling place to provide "a sufficient number of polling stations, conveniently distributed for the accommodation of Dail electors entitled to vote there" (see section 94). These "polling stations" are in fact the tables at which electors attend to obtain their ballot papers and the effect of section 60(3) is to entitle every candidate to appoint a personation agent at each polling station in the constituency in which he is a candidate.
Apart from the general duty imposed on personation agents to assist "in the detection of personation" contained in section 26(3) there are specific statutory rights and functions conferred on such agents. By the 1992 Act; a right to be admitted to the polling station (section 98(d); a right to request that certain questions be put to incapacitated persons (section 103(4); a right to have a voter challenged (section III(2)(b)(i)) and in certain circumstances to have arrested a person who has committed personation (section 105(2)). These rights are also conferred on personation agents appointed for the purposes of the poll at a referenda (section 32(1)) of the 1994 Act.
The Referendum Act 1994 (section 33) confers (subject to modification) on agents attending the count at referenda certain functions and rights conferred by the 1992 Act on agents attending general election counts on behalf of candidates, namely the right to be present through the count (section 113(2); the right to facilities for overseeing the counting of votes including facilities for satisfying themselves that the ballot papers had been correctly sorted; the right to be present for the opening of the ballot boxes (section 114(1). In addition there is a specific right conferred by section 36(1) permitting an authorised agent to obtain a partial or total recount of votes.
(ii) Referendum Act 1994.
The power to appoint personation agents and agents to attend at the counting of votes in referenda is different to that in the 1992 Act as there are, of course, no "candidates" in a referendum. Instead provision is made in the 1994 Act for the appointment of agents at the counting of votes and "personation agents" at the poll by a member of the Dail for the Constituency in which the referendum is being held and any member of the Senate.
Section 26(1) provides;
"A member of the Dail for the constituency and any member of the Senate may appoint agents to be present --
(a) At the issue of ballot papers to postal voters,
(b) At the opening of the postal ballot boxes,
(c) At the counting of the votes".
Sub-section 3 makes provision for personating agents as follows.
"A member of the Dail for the constituency and any member of the Seanad may appoint one person (in this Act referred to as a "personation agent" to be present as his agent in each polling station for the purpose of assisting in the detection of personation, and such appointment shall be in writing".
The section goes on to provide (sub-section 6) that the member of the Dail for the constituency and a member of the Seanad shall at least two days before polling day give written notice to the local returning officer for the constituency concerned of the name and address of every personation agent appointed by that member together with the name of the polling station for which the personation agent is appointed. Similar notice is to be given of the name and address of every agent appointed for the counting of votes (sub- section 8).
(iii) Electoral Act 1992 section 164.
Central to the issues in this case is the power of the Minister for the Environment to make adaptations or modifications by ministerial order where there is an "emergency" or "special difficulty". Section 164(1) provides as follows:
"The Minister may, in any case in which it appears to him that there is an emergency or special difficulty, by order make such adaptation or modification of any statute, order or regulation relating to the registration of Dail elections, Presidential electors, Seanad electors, European electors or Local Government electors or the conduct of Dail elections, Presidential elections, Seanad elections, European elections, Local Government elections or referenda as may in his opinion be necessary to enable such registration to be duly carried out or such election or referendum to be duly held, subject to compliance with the principles laid down in the relevant acts taken as a whole". (emphasis added)
Sub-section 2 provides that every order made under the section shall be laid before the houses of the Oireachtas and may be annulled by resolution passed by either house of the Oireachtas within 21 days after the house has sat or next after the Order had been laid before it.
The first issue that arises is whether the Minister had power by virtue of section 164 to do what the plaintiff urges he was required to do in this case to meet her objections to section 26 of the 1994 Act.
THE FACTS.
(a) The most important fact relevant to the plaintiff's case is that all the political parties represented in the Oireachtas supported the proposed constitutional amendment contained in the Fifteenth Amendment. The consequence of this was that those who opposed the amendment found it necessary to associate together by the establishment of ad hoc organisations to campaign to persuade the electorate to reject the proposed amendment as there was no organised political party doing so which they could support. A further consequence was this. As most members of the Oireachtas were members of political parties who supported the amendment those groups campaigning to oppose the amendment had no access, through association in a political party, to those persons designated by section 26 of the Referendum Act 1994 to appoint personation agents and agents to assist at the count. This meant that those associated to oppose the amendment were, to a considerable degree, dependant on the goodwill of a small number of independent member of the Oireachtas to obtain the nomination of agents under section 26. They experienced considerable difficulty in doing so, although a limited number of personation agents and a limited number of agents at the count were nominated at the request of opposition groups.
(b) The plaintiff claims that the circumstances surrounding the referendum on the Fifteenth Amendment constituted circumstances of "special difficulty" within the meaning of section 164 of the 1992 Act and in support of this contention she referred to the special difficulties she encountered in attempting to appoint personation agents and agents to attend the count on behalf of the opposition group with which she was associated. On the 23 October 1995 she was informed (correctly) by a member of the staff of the County Sheriff's office in Dublin that a letter of authorisation for the appointment of personation agents was required but, (incorrectly) that as regards the count centres the Sheriff had a discretion about the issuing of authorisations and that no problem would be encountered. On the 9 November 1995 she called to the office of the city Sheriff and complained about the procedures which required her to apply to a member of the Oireachtas for an authorisation to appoint personation agents and explained her reasons. She was given a copy of an official document which set out the legal requirements of the 1994 Act. As a consequence she then wrote a letter on the 11 November 1995 to the Minister and he replied on the 15 November. I will return to this correspondence later. On the 22 November she was informed in the office of the County Sheriff that an authorisation from a member of the Dail for the constituency or a member of the Senate was required to authorise an agent to attend the count. She telephoned a senator of her acquaintance and obtained from him authorisations for personation agents but, in error, he failed to give her authorisations for attendance at the count. She returned to the Sheriff's office where she met three persons who informed her that the authorisation for the count had to be signed by a senator who was resident in the constituency (this was incorrect) and that in relation to the senator whose name she had given the Sheriff's agent told her that "he had signed enough already" and her request for passes for the count was refused. In the event the group of which she was a member obtained a limited number of passes from the city Sheriff for the counting of votes which were under his control. She claims that the number of agents who received authorisations for the opposition groups with which she was associated were entirely inadequate to enable a proper supervision of the count to take place. She endeavoured to obtain evidence of what had occurred in other parts of the country and wrote to all local returning officers seeking information. The reply she received did not contain any information relevant to these proceedings.
(c) She failed in a request to the Director of Public Prosecutions that he apply for leave to bring a referendum petition. Her solicitor then wrote to the Minister on the 13 December 1995 referring specifically to his powers under section 164 of the 1992 Act. By a reply of the 4 January 1993 her solicitor was informed by the Minister's Private Secretary that the Minister had no proposal for the amendment of section 26 of the Referendum Act 1994.
(d) Her application for leave to issue proceedings for judicial review was refused by the High Court on the 19 December 1995. Her appeal against this refusal to the Supreme Court was refused on the 23 day of February, 1996. Later these proceedings were commenced by Plenary Summons.
(e) I turn now to the request made by the plaintiff to the Minister for measures to be taken by him to remedy the matters of which she complained. It was contained in a letter of the 11 November 1995, which reads as follows.
"Dear Minister,
Fifteenth Amendment to the Constitution Bill 1995 Personation Agents: Appointed by members of the Oireachtas persons appointed to observe postal ballot & both counts.
Urgent action is necessary to address the deficiency in the Electoral Act 1992 to Electoral (Amendment) Act 1995 and the Referendum Act 1994.
Opposition groups to the Fifteenth Amendment are excluded from appointing Personation Agents at each polling station and from attending at Count Centres without an authorisation from members of the Oireachtas. (Sec 68(1)/1992 and Sec 113/1992) and (Sec 26(1) & (2)/1994 and Sec 26(3) & (6)/1994).
You are requested urgently to make provision by way of emergency regulation, to ensure that the Referendum can be monitored by those groups opposed to the Amendment. It is essential that any Referendum is free and fair and is seen to be so.
The present position is that all parties in the Oireachtas are supporting the Amendment. Those who are against Divorce and the people campaigning on their behalf, are in obvious danger of being excluded from their democratic right of monitoring the Referendum by the fact that they must obtain authorisation from a member of the Oireachtas who is in favour of the Amendment.
In the circumstances you are asked urgently to address this anomalous situation by taking all legislative and regularity measures necessary."
The Minister replied to this letter on the 15 November in the following terms;
"Dear Miss Sherwin,
I have been asked by Mr Brendan Howlin TD, Minister for the Environment to refer to your letter of 11 November, 1995 in relation to the appointment of personation agents and agents to attend the counting of votes at the forthcoming referendum.
The law in relation to the appointment of such agents at a referendum is set out in section 26 of the Referendum Act 1994. Under that provision, a member of the Dail for the constituency and any member of the Seanad may appoint a person to be present as a personation agent at a polling station in the constituency or to attend at the counting of votes.
The Minister has no power to alter this provision by regulations. There are no proposals to provide for the amendment of the provision by legislation."
THE FIRST ISSUE (ADMINISTRATIVE LAW).
The first issue I propose to consider is the power conferred on the Minister by section 164 of the Electoral Act 1992. My conclusions are as follows.
(1) The power conferred by the Minister is a discretionary one -- he "may" in any case in which it appears to him that there is an "emergency or special difficulty" make an order as provided in the section.
(2) The power may only be exercised in the circumstances specified in the section, namely when it appears to him that there is an emergency or special difficulty.
(3) The power conferred is by order to make "such adaptation or modification" of any "statute order or regulation" referred to in the section. This includes the power to make an order modifying any Acts dealing with referenda. If in his opinion it is necessary to enable referenda "to be duly held" he may make an order under the section, but this must comply with the "principles" to be found in the Acts dealing with referenda.
(4) Once the Minister is satisfied that a "special difficulty" has arisen in relation to the holding of a Referendum he, quite clearly, has power to modify the 1992 Act in so far as it is necessary to enable a Referendum to be duly held. Section 26 of the 1994 Act confers an exclusive power to appoint the agents referred to in it on members of the Oireachtas. In my opinion, should he conclude that circumstances of a "special difficulty" exists he has p6wer to modify the section so as to enable additional agents to be appointed by means other than those provided for in the section if this is necessary to enable a Referendum to be duly held.
(5) Should a special difficulty arise in the counting of votes as a result of the operation of section 26 of the 1994 Act it would be open to the Minister to hold that this special difficulty could result in the Referendum not being duly held and accordingly his statutory power would include a power to modify the provisions of section 26 relating to the appointment of agents at the counting of votes.
In the light of these conclusions I turn now to the facts of the case.
It seems to me that the Minister's letter of the 15 November 1995 given in response to the plaintiff's request to redress the complaints contained in her letter of the 12 November 1995 shows that he had misconstrued his Ministerial powers. I cannot agree with the submission made on his behalf that from this letter it is to be inferred that he had taken a decision that no "special circumstances" had arisen and that he was merely pointing out that he had no power to amend the statute. This letter can only be construed as an opinion that the only way in which he could remedy the plaintiffs grievance was by amending the Referendum Act 1994 and he did not propose to do so. But section 164 of the Electoral Act 1992 gave him power to modify the 1994 Act and so it would appear that the Minister had disabled himself from considering whether or not he should exercise his discretionary powers under section 164.
Order 84 Rule 18 of the Rules of Court provide that an application for an order of certiorari and/or mandamus "shall be made by way of an application for judicial review in accordance with the provisions of this order" and Order 84 Rule 20(1) provides that no application for judicial review may not be made "unless leave of the court has first been obtained" in accordance with the Rule. In this case the plaintiff was refused leave to apply for an order of certiorari and so in these proceedings the court has no jurisdiction to entertain an application that the Ministerial decision contained in the letter of the 15 November 1995 be quashed. Likewise, the court has now no jurisdiction to grant an order of mandamus directing the Minister to make an order modifying the section in the manner requested by the plaintiff or otherwise.
The refusal of leave to institute judicial review proceedings does not, of course, bar the plaintiff claiming a declaratory order in these plenary proceedings, as she has done. I am satisfied that she has made out grounds for declaratory relief. The Minister has misconstrued the section. The possibility that other referenda will take place in circumstances similar to those relating to the Fifteenth Amendment is not a fanciful one and the issue raised by the plaintiff may well arise again. It is therefore proper that the court should clarify the Minister's legal powers. I propose, therefore, to make the following declaration:-
"Should a request be made to the Minister that the power to appoint agents under section 26 of the 1994 Act be extended to permit their appointment otherwise than exclusively by members of the Oireachtas the Minister has jurisdiction under section 164 of the Electoral Act, 1992 to consider whether there exists circumstances of special difficulty arising from the operation of the power of appointment contained in the section. Should he decide that circumstances of special difficulty do arise he may modify section 26 by providing by Ministerial Order that the power of appointment should be exercised by persons or groups in addition to the persons mentioned in the section. This power includes a power to modify the provisions of the section relating both to the appointment of personation agents and those relating to agents to attend the counting of votes.
THE SECOND ISSUE (CONSTITUTIONAL LAW).
The plaintiff has claimed that if she is not entitled to an order of mandamus directing the Minister to exercise his powers under section 164 in the manner she urges then she is entitled to an order that the section is unconstitutional.
The plaintiff's claim is that the Act became unconstitutional in the circumstances surrounding the enactment of the Fifteenth Amendment, namely that all the political parties represented in the Oireachtas supported the proposed amendment and opposition to it was organised by groups of citizens who associated for this purpose and who campaigned to persuade the electorate to reject the proposal resulting in very limited appointments of agents under section 26 by those opposing the amendment. Let me assume for a moment that the statute became constitutionally defective in the way alleged. It does not follow, however, that the statute is therefore constitutionally invalid. Section 164 of the 1992 Act contained a statutory mechanism for dealing with "special circumstances" by Ministerial Order. A factual development which produces a constitutional defect can properly be regarded as "special circumstances" within the meaning of the section. As already pointed out, the Minister has power to remedy this defect. Now that the court has made clear that he is legally entitled to do so the court must assume that the Minister will exercise his powers in a constitutional manner. If the Act is unconstitutional it must assume that the Minister will act to remedy this defect. A statute which contains a built-in remedial mechanism to remedy possible constitutional invalidity in its operation is not, in my opinion, an unconstitutional statute.
Notwithstanding the view which I have just expressed, in deference to the very full legal argument which has been advanced on both sides and because the parties may wish to have a judgment now on the issues raised rather than leave them for possible adjudication in later proceedings I propose to express my views on the substantiative constitutional issues which have been raised.
Constitutional invalidity, it is urged, arises in two ways (1) section 24 infringes the constitutionally guaranteed personal rights of the plaintiff and (2) the statute infringes the constitutional provisions relating to the referendum.
As to (1), Article 40(1) provides that "all citizens shall, as human persons, be held equal before the law" and the plaintiff's claim is that the section imposes a detriment on groups of citizens associated to oppose the proposed amendment which is not imposed on groups of citizens associated in political parties and who have representatives of their political parties in one or other houses of the Oireachtas. The detriment is that the plaintiff's group have great difficulty in appointing the agents referred to in section 26 which those groups supporting the amendment do not experience. This inequality, it is said, is a serious one and infringes Article 40(1) of the Constitution.
With regard to personation agents, this argument is based, in my opinion, of a misunderstanding of the Article and the section. The Supreme Court has explained that the guarantee in Article 40(1) is not a guarantee of absolute equality for all citizens in all circumstances, but is a guarantee of equality as human beings and a guarantee against inequalities based on an assumption that some individuals because of their human attributes ethnic, racial, social or religious background are to be treated as inferior or superior of other individuals in the community (Quinns Supermarket Ltd v Attorney General [1972] IR 13). Personation agents are appointed under the section not for the purpose of enabling political parties or groups of persons associated to campaign in referenda to detect or deter personation by their political opponents - they are appointed to assist returning officers in ensuring compliance with the law against personation. No political rights derived from the constitution which the plaintiff may enjoy are infringed by this provision nor is the equal enjoyment of any of her constitutionally protected rights diminished. There is, of course, a difference of treatment of the two political groupings involved in the campaign but it is one derived from the operation of administration machinery established for the appointment of agents and is not based on any distinction which has been derived from an assumption that persons in one group are inferior or superior in some respect to those in another. The section does not, in my opinion, infringe any of the plaintiff's Article 40 rights.
In particular I cannot agree that any right which the plaintiff may possess to fair procedures in the political process is infringed by the section.
With regard to the appointment of agents at the count, again no guaranteed personal right of the plaintiff or her associates is breached by the provisions of the section. Agents are appointed to help returning officers count the votes properly -- not to detect possible malpractice by political opponents. The difference of treatment which in the appointment of agents between the groups supporting and those opposing the amendment arose from the operation of administrative machinery established by statute and was not based on any considerations relating to the personal characteristics of the individuals comprising the groups. The limitations arising from the operation of this machinery did not impinge on any political rights which the plaintiff may enjoy, or any right to fair procedures derived from the Constitution.
I will consider now the argument that even if the plaintiffs rights were not infringed the Referendum Act 1994 infringed the constitutional provisions relating to referenda.
It is submitted on behalf of the plaintiff that by enacting section 26 the Oireachtas invalidly interfered with the manner in which the constitution requires referenda to be held and that the section is therefore unconstitutional. In support of this particular submission reliance is placed on the decision of the Supreme Court in McKenna v An Taoiseach [1995] 2 IR 1. This was a case concerning the funding out of proceeds of taxation by the government of an advertising campaign to attempt to influence the electorate to support the proposed amendment of the constitution. The Supreme Court held that this was an unconstitutional interference with the referendum process as required by the Constitution. The plaintiff urges that section 26 offends more seriously than did the wrongful act in McKenna -- that act merely interfered with the election campaign whereas the impugned section interferes with the voting procedures of the referendum. It is claimed that the Oireachtas wrongly arrogated to its own members the power to nominate personation agents and agents to monitor the count and that this interfered with the democratic process by which the people itself decides every issue relating to the amendment of the Constitution. I cannot agree. The appointment of agents to assist in deterring and in detecting possible personation and to assist in ensuring that the count is conducted according to law does not "interfere" with the democratic process -- it assists it. The appointment of such agents by members of the Oireachtas cannot in itself be considered an "interference" in the democratic process. I have already explained why the law does not infringe any constitutional concept of equality or of any constitutional requirement that electoral procedures be fair. The facts of this case are entirely different to those in McKenna and I must reject the submission based on it.
Finally, it was suggested that because the count was not held in public and open to all members of the public to attend the section was unconstitutional. The constitution permits the Oireachtas to regulate the manner in which referenda are held and there are obvious practical reasons why access to the count should be limited in some fashion. There can be no possible constitutional objection to doing so.
I should add that I did not read all the foreign statutes which counsel supplied me with as unfortunately I was unable to read the language in which some were printed. The documents established very clearly how varied are the statutory provisions relating to the holding of elections and referenda in different states, but I do not think that they assist in establishing that the measure adopted in this jurisdiction infringed the Irish Constitution.
The fact that the section is constitutionally valid does not mean that the Minister cannot decide that circumstances of special difficulty have arisen in the operation of section 24 of the 1994 Act and that remedial action is required should he be asked to exercise his powers under section 164 of the 1992 Act.
© 1997 Irish High Court