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Cite as: [2014] IEHC 327

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Judgment Title: Jordan -v- Minister for Children and Youth Affairs & ors

Neutral Citation: [2014] IEHC 327

High Court Record Number: 2012 11697 P

Date of Delivery: 20/06/2014

Court: High Court

Composition of Court:

Judgment by: McDermott J.

Status of Judgment: Approved

Neutral Citation: [2014] IEHC 327

THE HIGH COURT

[2012 No. 11697 P]

BETWEEN

JOANNA JORDAN

PLAINTIFF

AND

THE MINISTER FOR CHILDREN AND YOUTH AFFAIRS, THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr. Justice McDermott delivered on 20th day of June, 2014

1. On 10th November, 2012, a Referendum was held whereby a proposal for the deletion of Article 42.5 of the Constitution and the insertion of a new Article 42A as contained in the Thirty First Amendment of the Constitution (Children) Bill 2012, was submitted for the decision of the people. A provisional referendum certificate was published in Iris Oifigiúil dated 12th November, 2012, on 13th November which confirmed the final results of the Referendum. This certificate, prepared from the reports submitted by the several local returning officers in all constituencies in the State, set out the following overall result:-

“2. (a) The total number of votes recorded at the Referendum in favour of the proposal was [615,731]

(b) The total number of votes recorded at the Referendum against the proposal was [445,863]

3. A majority of the votes recorded at the Referendum was recorded in favour of the proposal.”

This indicated that 33.49% of the eligible electorate voted, 58% of those who voted, voted in favour of the proposed amendment and 42% voted against. Prior to polling day the Supreme Court in McCrystal v. Minister for Children and Youth Affairs & Ors [2012] IESC 53 (McCrystal) delivered a ruling on 8th November, 2012, which held that an information campaign sponsored by The Minister for Children and Youth Affairs in respect of the Children Referendum in advance of the poll constituted a clear disregard of the rights of citizens to a Referendum conducted in accordance with the norms of the democratic process mandated by the provisions of the Constitution.

2. The information campaign commenced on 19th October, 2012. The Minister launched a website, conducted an advertising campaign on television, radio and in the printed media and produced a booklet said to be for the purpose of informing the electorate about the Referendum proposals. Mr. McCrystal alleged that this campaign was in clear disregard of the principles established by the Supreme Court in McKenna v. An Taoiseach (No.2) [1995] 2 IR 10 (McKenna (No.2)) which determined in the course of the Divorce Referendum, that the government may not spend monies to promote a result in a Referendum. The Supreme Court in McKenna (No.2) concluded that the government funding of that campaign designed to influence voters in favour of a “yes” vote was an interference with the democratic and constitutional process for the amendment of the Constitution and infringed the concept of equality which was fundamental to the democratic nature of the state. The court granted a declaration encapsulating these findings, but declined to issue an injunction. Hamilton C.J. formulated a number of remedial principles upon which the court might exercise its jurisdiction in relation to the government’s breach of the Constitution as follows:-

“(1) The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, provided that it acts within the restraints imposed by the Constitution on the exercise of such powers;

(2) If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene;

(3) The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.” (per Hamilton C.J. at p. 32 and Blayney J. at p. 50)

3. In a concurring judgment, Denham J. (as she then was) emphasised the right of a citizen to equality of political rights in a “democratic” state which had been recognised by Budd J. in O’Donovan v. Attorney General [1961] I.R. 114 at 137 when considering the right to vote under Articles 16.2.3 and 40.1 of the Constitution. Denham J. was satisfied that:-

“The spirit and concept of equality applies to the process of a referendum. There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum… Ireland is a democratic state. The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a democracy free from governmental intercession with the process, no matter how well intentioned. No branch of the government is entitled to use taxpayers monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote.

This is an implied right pursuant to Article 40, s. 3 which harmonises with Article 5, Article 6, s. 1, Article 16, Article 40, s. 1, Article 47, s. 3 and is in keeping with the democratic nature of Bunreacht na hÉireann...

Power derives from the People, and is exercised under the Constitution through their organs of government (legislative, executive, judicial). Power and decision-making in referenda is with the People.

The organs of government are instruments of the People. Thus, the democratic process is fundamental and critical to the exercise of power under the Constitution.” (pp. 53 - 54)

4. On 19th October, 2012, Mr. McCrystal in an ex parte application to the High Court initiated proceedings in respect of the expenditure of public funds by The Minister for Children and Youth Affairs and the government in the course of the Referendum campaign based on the McKenna principles. Evidence was adduced that the Department had allocated a budget of €3m to be spent on the Referendum. €1.9m was allocated to the Referendum Commission which had been established on 19th September, 2012, to finance the discharge of its statutory duties. The balance of €1.1m was to be used by the Department “to provide information on the Referendum and encourage members of the public to vote”. Mr. McCrystal claimed that the materials produced by the government tended to promote a “yes” vote. He sought a declaration that the defendants had acted wrongfully and were not entitled to pursue a particular result under the guise of providing information, an injunction restraining the defendants from promoting a particular result and consequential orders in respect of the ongoing distribution of the booklets, the use of the website and the advertising campaign.

5. In an ex tempore judgment on 1st November, Kearns P. [2012] IEHC 101 considered an extensive body of expert and other evidence submitted on affidavit, but was not satisfied to conclude that the material in question constituted “a clear constitutional abuse or manifested a solicitation to vote in a particular way”.

6. This decision was appealed to the Supreme Court which commenced a hearing on the matter on 6th November, 2012. On 8th November the Supreme Court granted a declaration that the material (the booklet, website and advertising) in places breached the McKenna principles. A judgment was delivered by the Supreme Court on 11th December, which set out more detailed reasons for granting the declaration sought. No injunction was granted as it was assumed by the Supreme Court that, in the light of the declaration, the government would cease the unconstitutional behaviour.

7. The Supreme Court ruling was delivered two days before polling day. It was followed by intense media coverage of the ruling and its implications which involved extensive and robust debate between those engaged in the Referendum campaign. Steps were taken to cease distribution and publication of materials.

8. The poll took place on 10th November and the provisional referendum certificate was published in Iris Oifigiúil on 13th November. The plaintiff initiated proceedings questioning the validity of the poll result. She sought leave to present a petition pursuant to s. 42 of the Referendum Act 1994, in respect of the provisional referendum certificate. The petitioner contended that the nature and extent of the breaches of the Constitution and the conduct of the information campaign by the Minister had a “material affect” on the result of the Referendum as a whole. Orders were sought annulling the certificate and directing that the Referendum be taken again in one, some or all constituencies and that the certificate be amended in accordance with the result. Expert evidence was proffered by the petitioner and the respondents. This Court, in a judgment delivered on 18th October, 2013, [2013] IEHC 458, held that, on the basis of the findings of the Supreme Court in the McCrystal case, and the evidence adduced in the course of the proceedings, the applicant had established a “prima facie case” pursuant to s. 42 of the Referendum Act 1994, and granted leave to the plaintiff to present the petition on the grounds set out at para. 4 of the petition which were:-

“(1) It is a requirement of the Constitution of Ireland…that public funding must not be used in a Referendum to espouse a particular point of view.

(2) Use of public funding in a Referendum to espouse a particular point of view also results in a violation of standards, which are recognised nationally and internationally, for a Referendum process.

(3) Prior to the Referendum, a booklet (the Booklet) and a website (the Website) (together “the Campaign Material”) both entitled “Children’s Referendum” - and advertisements (“Advertising”), were published and disseminated by or on behalf of the Government and/or the State, on foot of monies voted by the Oireachtas.

(4) The Booklet was widely distributed to homes in the jurisdiction. In the premises…given its widespread distribution and readership, the Booklet was such as to affect materially the result of the Referendum as a whole and/or affected the result of the Referendum and/or may have affected the result of the Referendum.

(5) The Website was widely viewed during the period. Further and without prejudice to the foregoing…given its widespread readership, the Website was such as to affect materially the result of the Referendum as a whole and/or affected the Referendum and/or may have affected the Referendum.

(6) There was widespread awareness of the Advertising. Further and without prejudice to the foregoing…given widespread awareness of it, the Advertising was such as to affect materially the result of the Referendum as a whole and/or affected the Referendum and/or may have affected the Referendum.

(7) The Booklet, the Website, and the Advertising espouse the view that voters should vote in favour of the proposed amendment.

(8) Following a legal challenge, on 8th November, 2012, the Supreme Court ruled that it was clear that there were extensive passages in the Booklet and on the Website, which were not in accordance with the requirements of the Constitution. The Supreme Court also concluded that said Campaign Material included a misstatement as to the affect of the Referendum (together “the Breaches of the Constitution”).

(9) The Supreme Court granted a declaration in respect of the Breaches of the Constitution to the effect that the Minister for Children and Youth Affairs, the Government of Ireland, Ireland and the Attorney General:

‘acted wrongfully in expending or arranging to expend public monies on the Website, Booklet and Advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill 2012, in a manner which was not fair, equal or impartial.’

(10) The Supreme Court declaration was made only two days prior to the holding of the Referendum.

(11) Notwithstanding the Supreme Court’s declaration, the defendants proceeded to hold the Referendum as scheduled on 10th day of November, 2012.”

9. The court was satisfied on the evidence adduced that the petitioner had established a prima facie case on the grounds set out in the petition. However, the court was not satisfied on the balance of probabilities that the petitioner had succeeded in establishing these grounds for the reasons set out in the judgment and the petition was dismissed.

10. The plaintiff, on the same day that she applied to the High Court for leave to present the referendum petition under the 1994 Act, caused the plenary summons in these proceedings to be issued. At the hearing of the petition proceedings, the petitioner reserved her right to pursue these proceedings should she fail to obtain relief in the petition proceedings.

11. The plaintiff has appealed the judgment of the court dismissing the petition to the Supreme Court by notice of appeal dated 23rd October, 2013.

The Plaintiff’s Claim
12. The plaintiff seeks a number of declarations that the expenditure of public money in pursuit of a campaign in respect of the Referendum which was not fair, equal, impartial and/or neutral was unconstitutional and that the result of the Referendum and/or the provisional referendum certificate were tainted by unconstitutionality and/or illegality as a result of the government’s unconstitutional expenditure and a further declaration that the result and/or the referendum certificate are null and void as a result.

13. A declaration is also sought that the provisions of the Referendum Act 1994, and in particular ss. 42(1), 42(3), 43(1), 47, 48 and 57 thereof are invalid having regard to the provisions of the Constitution and/or insofar as the Act fails to make provision for the holding of a Referendum to be postponed for such period as may be necessary to remedy any wrongful conduct by or on behalf of the government.

14. A series of declarations are also sought pursuant to s. 5 of the European Convention on Human Rights Act 2003. The plaintiff seeks a declaration that the same provisions of the Referendum Act 1994, are incompatible with Articles 6, 10, 13 and 14 of the European Convention on Human Rights and are inconsistent with and/or invalid having regard to internationally accepted standards and/or generally recognised principles of international law for the proper conduct of Referendums and, in particular, the Code of Good Practice on Referendums (“the Code”) of the European Commission for Democracy through Law (Venice Commission), adopted by the Council for Democratic Elections at its 19th Meeting (Venice, 16th December, 2006), and the Venice Commission at its 70th Plenary Session (Venice, 16-17 March, 2007). A declaration is also sought that insofar as it fails to make provision for the holding of a Referendum to be postponed for such period as may be necessary to remedy any wrongful conduct by or on behalf of the government, the Referendum Act 1994 is incompatible with the same Articles of the European Convention on Human Rights and the Code. In addition, a declaration is sought that the defendants have acted inconsistently with internationally accepted standards or generally recognised principles of international law for the proper conduct of Referendums and the Code.

15. The parties agreed that the evidence adduced during the course of the petition proceedings should be regarded by the court as the evidence on all issues arising in this case and that the court should proceed on the basis of the findings of fact and law made in the petition proceedings for the purposes of this challenge, notwithstanding the pending appeal in the Supreme Court in respect of the court’s judgment and order.

16. I am satisfied that the plaintiff has locus standi to bring this challenge in accordance with the principles established in Cahill v Sutton [1980] I.R. 269; Norris v Attorney General. [1984] IR 36 and The Society for the Protection of Unborn Children Ltd. V Coogan [1989] I.R. 734 on the basis that she was a registered elector who voted in the referendum and was unsuccessful in her subsequent petition under the 1994 Act.

The Constitution
17. The sovereignty of the people and the democratic nature of the state are recognised as fundamental constitutional principles in the Preamble to and other Articles of the Constitution including:-

“Article 5

Ireland is a sovereign, independent, democratic State.

Article 6

1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the state and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of state established by this Constitution.

Article 15

4 1° The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof.

2° Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

Article 46

1. Any provision of this Constitution may be amended, whether by way of variation, addition or appeal, in the manner provided by this Article.

2. Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

3. Every such Bill shall be expressed to be “an Act to amend the Constitution”

4. A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.

5. A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.

Article 47

1. Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law.

3. Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum.

4. Subject as aforesaid, the Referendum shall be regulated by law.”

Referendum Act 1994
18. The Referendum Act 1994, provides the statutory mechanism for the reference to the people under Article 47 of the Constitution of Bills containing proposals for the amendment of the Constitution. Section 7 provides that those present in varying capacities at a Referendum shall maintain and aid in maintaining the secrecy of the ballot, and s. 8 further protects the secrecy of the ballot by providing that a person who has voted at a Referendum shall not in any legal proceedings be required to state how he voted. Part II sets out detailed provisions concerning the holding of a Referendum, none of which are in issue in these proceedings. Part III (ss. 33 to 41) contains provisions for the counting of votes cast at a Referendum. The local returning officer in every constituency is obliged, once the votes are counted, to complete and furnish a report to the Referendum returning officer indicating the number of votes given in favour of the proposal and the number of votes given against, and the total number of valid ballot papers for the constituency. The Referendum returning officer must prepare a provisional referendum certificate under s. 40 from the reports received from the local returning officers in the various constituencies and must “as soon as may be” after signing the certificate publish a copy in Iris Oifigiúil, together with a statement that it will become final and incapable of being questioned when the officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every Referendum petition so presented has become null and void. In the normal case where the certificate has become final otherwise than being confirmed by the High Court, the referendum returning officer must endorse a statement that it has become final and send a copy of the certificate to the President and the Taoiseach. It is then for the President to carry out his functions under Article 46.5 of the Constitution.

Referendum Petitions
19. Part IV of the 1994 Act prescribes the only process by which the validity of a provisional referendum certificate may be challenged. The relevant provisions are:-

“42 (1) The validity of a provisional referendum certificate may, and may only, be questioned by a petition to the High Court (in this Act referred to as “a referendum petition”) in accordance with this Act.

(2) A referendum petition in relation to a provisional referendum certificate shall not be presented to the High Court unless that court, on application made to it in that behalf by or on behalf of the person proposing to present it not later than seven days after the publication in Iris Oifigiúil of the certificate, by order grants leave to the person to do so.

(3) The High Court shall not grant leave under subs (2) to present a referendum petition unless it is satisfied -

(a) that there is

prima facie

evidence of a matter referred to in s. 43 in relation to which the referendum petition questions the provisional referendum certificate concerned, and

(b) that the said matter is such as to affect materially the result of the Referendum as a whole.

(4) An application for leave to present a referendum petition may be made by the Director of Public Prosecutions or by any person who is registered or entitled to be registered as a presidential elector.

43 (1) A referendum petition may question a provisional referendum certificate on the grounds that the result of the Referendum as a whole was affected materially by -

(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by s. 6),

(b) obstruction of or interference with or other hindrance to the conduct of the Referendum,

(d) a mistake or other irregularity in the conduct of the Referendum or in the particulars stated in the provisional referendum certificate.

(2) Notwithstanding any other provision of this Act, a Referendum petition shall not be dismissed on account of any informality and its contents which does not materially affect its substance.”

20. Sections 44 and 45 are of a procedural nature. Section 45 requires that a petition shall specify the grounds upon which it is based and the remedy it seeks. Other provisions govern the mode of trial and the orders that may be made in respect of the petition:-

“46.—(1) A referendum petition shall be tried by the High Court and references in this Part to the court shall be construed as references to the High Court.

(2) The following provisions shall have effect in relation to the trial of a referendum petition:

(a) in fixing the date for and conducting the trial, the court shall give the matter such priority as is reasonably possible;

(b) the trial shall be continued until its result is determined notwithstanding the death of any petitioner;

(c) the Director of Public Prosecutions may at any stage be represented at and take part in the trial as a party, whether of his own motion or at the request of the court;

(d) the referendum returning officer shall attend the trial and produce and deliver to the court the provisional referendum certificate and give such assistance as may be required of him by the court, but without prejudice to being called as a witness by any party;

(e) the local returning officer for a constituency to which the petition relates shall, at the request of the court, attend the trial and give such assistance as is requested by the court, but without prejudice to his being called as a witness by any party.

47.—(1) The court may, for the purposes of the trial of a referendum petition, if it thinks fit, order—

(a) that all the votes cast at the referendum in a constituency shall be counted afresh, or

(b) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted, and where the court so orders, the provisions of this section shall have effect.

…

48.—(1) At the trial of a referendum petition the court may order that the referendum to which the referendum petition relates shall be taken again in a constituency, and where the court so orders the following provisions shall have effect:

(a) the court shall, in its order under this section, appoint the day which shall be the polling day for the purpose of the retaking of the referendum in the constituency;

(b) the referendum shall be retaken in the constituency and the provisions of this Act in relation to the taking of a referendum shall apply to the retaking, with the substitution of the polling day appointed by the order of the court for the polling day appointed by the Minister;

(c) the referendum returning officer, having received the report of the local returning officer of the result of the counting of the votes at the retaking, shall forthwith report the result to the court.

(2) The court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance with any of the provisions contained in this Act or an error in the use of forms provided for in this Act where it appears to the court that the referendum was conducted in the constituency in accordance with the general principles laid down in this Act and that the non-compliance or error did not affect the result of the referendum as a whole.”

…

57.—(1) At the trial of a referendum petition the court shall determine the matter at issue and the final order of the court on the trial of the referendum petition shall either—

(a) confirm without alteration the provisional referendum certificate which was the subject of the petition, or

(b) direct that the said certificate shall be amended in accordance with the findings of the court (including the result of any counting afresh of votes or any retaking of the referendum) and confirm the certificate as so amended.

(3) Where the court confirms a provisional referendum certificate without alteration, the court shall cause a statement of the fact of such confirmation to be endorsed on such certificate and shall cause such certificate so endorsed to be returned forthwith to the referendum returning officer.

(4) Where the court directs a provisional referendum certificate to be amended and confirms the certificate as so amended, the court shall cause the certificate to be amended in accordance with such direction, and shall cause a statement of the fact that such amendment was made by order of the court and of the fact that the certificate as so amended was confirmed by the court to be endorsed on the certificate and shall cause the certificate so amended and endorsed to be returned forthwith to the referendum returning officer.

(5) A provisional referendum certificate duly endorsed in accordance with this section shall, when it is received by the referendum returning officer from the High Court, forthwith become and be, in the form in which it was confirmed by the court, final and incapable of being further questioned in any court and shall, in that form, be conclusive evidence of the voting at the referendum to which it relates and of the result of such referendum.”

21. The court is vested with a number of powers calculated to preserve the integrity of the proceedings. Section 52 states that the court is entitled of its own motion at any time during the trial of the petition to direct any person to be brought before the court to give evidence at the trial. Section 52(2) provides for a limitation on the normal privilege against self incrimination in order to ensure that all relevant evidence is made available to the court determining the issues in the case. It provides:-

“(2) Subject to subsection (3), a person who is called as a witness at the trial of a referendum petition shall not be excused from answering any question relating to any offence at or connected with the relevant referendum on the ground that the answer thereto may incriminate or tend to incriminate that person or on grounds of privilege: provided that—

(a) where the court is satisfied that a witness has answered truly all the questions which the witness is required by the court to answer, the court shall issue a certificate stating that the witness has so answered, and

(b) an answer by a person who has received such a certificate to a question put at the trial of a referendum petition shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be, in any proceeding, civil or criminal, admissible in evidence against that person.”

22. The withdrawal of a petition is also subject to various provisions intended to ensure the integrity of the process. Under ss. 49(2)(a) and (b) a petitioner seeking the leave of the court to withdraw a petition must submit an affidavit stating the reasons for the proposed withdrawal and that to the best of the petitioner’s knowledge and belief, neither an agreement nor an undertaking has been made or entered into in relation to the withdrawal of the petition in consideration of any payment or for any substantial reason not stated in the affidavit. Under s. 50 the court on hearing an application to withdraw a petition may permit any other person eligible to apply for leave to present a Referendum petition to be substituted as the petitioner. Under s. 51(1)(a) if the petitioner should die, the court shall transfer the carriage of the petition to the Director of Public Prosecutions and under s. 51(1)(b), if the petitioner fails to proceed with reasonable speed with the proceedings, the court may on the application of the Director of Public Prosecutions forthwith make a final order confirming without alteration the provisional referendum certificate or, transfer the carriage of the petition to the Director. Thus, the court is vested with extensive powers to ensure that all evidence relevant to the issues raised in the grounds advanced in the petition is adduced.

Hanafin and the Interpretation of Sections 42 and 43
23. Following the result of the Divorce Referendum and in the wake of the McKenna (No.2) decision, a challenge was mounted to the Referendum result in Hanafin v. Minister for the Environment [1996] 2 IR 321 (Hanafin) in which the Supreme Court considered the nature, scope and rationale of the relief available under ss. 42 and 43 of the Referendum Act 1994, in respect of the unconstitutional use of public funds in the course of a Referendum campaign. This Court has already considered and applied the principles identified in Hanafin in its judgment in the petition proceedings.

24. In Hanafin, the petitioner was granted leave to present a petition to the High Court under s. 42 and to seek orders that the provisional referendum certificate in respect of the Divorce Referendum was null and void on the basis that the result as a whole was affected materially by obstruction and/or interference with the conduct of the Referendum and/or by irregularities in its conduct because the government had wrongfully sought to influence the outcome of the Referendum by the expenditure of public monies on an advertising campaign to advocate support for the proposed amendment. That claim was based on the findings by the Supreme Court in the McKenna (No.2) case that the expenditure of these funds by the government was in breach of the Constitution.

25. The Supreme Court considered the nature and scope of the relief available under ss. 42 and 43 of the Act and the onus and standard of proof in respect of the trial of the petition. The majority in the Divisional High Court adopted a narrow construction of the meaning of “conduct of the Referendum” under s. 43. They declined to interpret the phrase as applying to an information campaign. The words “interference”, “obstruction”, “hindrance”, and “irregularity”, were held to apply only to “an improper intrusion in the procedural or mechanical activity of organising a Referendum”, and the government’s constitutional wrongdoing as defined in McKenna (No.2) did not “translate into an electoral wrongdoing within the meaning of s. 43 of the Act” (per Murphy and Lynch JJ.).

26. Barr J. disagreed and concluded that the words should be interpreted in a broader sense to include the unlawful conduct of the government in its Referendum campaign and the consequences thereof. This interpretation was approved by the Supreme Court. Hamilton C.J. applied the principle identified by Walsh J. in East Donegal Livestock Mart Ltd v. The Attorney General [1970] I.R. 317, that the constitutional interpretation of a statute must be regarded as that intended by the Oireachtas because the presumption of constitutionality carried with it the presumption:-

“that the Oireachtas intended that the proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice.” (p. 341)

27. The learned Chief Justice stated at p. 423:-

“Can it be said that the Oireachtas, being one of the organs of government established by the Constitution, being subject to the provisions thereof and having been entrusted with the obligation to respect and, so far as practicable, to defend and vindicate the rights of the citizens, intended that, on the hearing of a Referendum petition in accordance with the provisions of s. 42 of the Act, the High Court be precluded from questioning the validity of a provisional referendum certificate challenged on the grounds that there had been an obstruction of or interference with or other irregularity, involving constitutional wrongdoing and alleged to have affected materially the result of the Referendum, in the conduct of the Referendum campaign, and that the challenge to the validity of the certificate must only relate to an obstruction, interference or irregularity in the conduct of the poll and the word “referendum” as used in the Act meant and was intended to mean merely “the poll” and the manner in which it was conducted?

If, on the interpretation or construction of the Act, and in particular of ss. 42 and 43 thereof, it were held that such was the intention of the Oireachtas, then this meant that the Oireachtas intended that a constitutional wrongdoing committed by the government, or any other party, during the course of the campaign and proved to have materially affected the result of the Referendum could not be considered by the High Court on the hearing of a Referendum petition, which was the only way it could be questioned, as a ground for questioning the validity of the provisional referendum certificate.

If such was the intention of the Oireachtas, it would have failed in its obligation to respect, and so far as practicable, to defend and vindicate the democratic process, as outlined herein and the constitutional rights of the citizens.

The court must, however, presume that the Oireachtas did not so intend but intended that such rights should be defended and vindicated. The defence and vindication of such rights requires that the words “the conduct of the Referendum” contained in s. 43(1)(b) and (d) should be interpreted sufficiently widely to include unlawful and unconstitutional conduct in the Referendum campaign which materially affected the result of the Referendum. There is nothing in the other provisions of the Act which prevents this construction, which construction accords with the provisions of the Constitution.

I accept as being correct the statement made by Barr J. when dealing with this issue where he stated that:-

‘It seems to me that the fundamental importance of the concept that the will of the people should be properly ascertained in accordance with law on a Referendum on constitutional change requires that the words “the conduct of the Referendum” in s. 43(1)(b) and (d) should be interpreted sufficiently widely to include unlawful conduct on the part of the government in its Referendum campaign and the consequences thereof which are alleged to have caused an obstruction, interference, hindrance to or irregularity in the conduct of the Referendum of such gravity as to vitiate its apparent result. This is an issue which the petitioner puts before the court and on which, in my view, he is entitled to a decision.”

28. The Referendum Act 1994, is expressed to be “an Act to provide for the reference to the people under Article 47 of the Constitution of Bills containing Proposals for the Amendment of the Constitution… and to provide for matters connected with the matters aforesaid”. The statute was enacted in fulfilment of the obligation of the Oireachtas to regulate referenda by law under Article 47.5. As also noted by Hamilton C.J. in Hanafin, the validity of the provisional referendum certificate may only be questioned by Referendum petition in accordance with the Act and only on the grounds set out in section 43.

29. The Supreme Court held that in providing that a petitioner may only question a provisional referendum certificate “on the grounds that the result of the Referendum as a whole was affected materially” under s. 43, it was intended that “no matter what the nature and extent of the wrongdoing may be, the result of the Referendum cannot be impugned or interfered with if the result of the Referendum as a whole was not materially affected by such wrongdoing”. The court rejected the submission that the Act did not require the petitioner to establish a ‘material affect’ as a separate requirement once unconstitutional conduct had been established and that it should be understood as requiring the petitioner to demonstrate merely that “the interference or wrongdoing was not trivial or inconsequential ”. The court also rejected a submission made by the respondents that the petitioner was required to establish the case to a criminal standard of proof. In rejecting these submissions Hamilton C.J., having considered ss. 42, 43 and 48 of the Act, stated:-

“From a consideration of these subsections of the Act, it is clear that the Act provided and intended that the result of the Referendum as a whole could only be questioned if it was established to the satisfaction of the court that the result was materially affected by the alleged wrongdoing. The onus of so establishing rests on the petitioner who questions the result of the Referendum. (p. 425)

This is not only required by the Act but is in accord with the constitutional right of the citizens to vote in a constitutional Referendum and to have the result thereof accepted, respected and not interfered with unless it is established that such result was materially affected by alleged wrongdoing of such a nature and affect as to vitiate the Referendum.” (pp. 426-427)

30. The Supreme Court concluded that the civil standard of proof on the balance of probabilities was appropriate to the case. This was applied by this court in the petition proceedings in accordance with the decisions in Banco Ambrosiana SPA v. Ansbacher & Company Ltd [1987] ILRM 669, O Laoire v. Medical Council (Unreported, Supreme Court, 25th July, 1997) and Hanafin mindful of the consequences of the potential findings of fact in a referendum petition when assessing whether an appropriately cogent body of evidence had been established offering clear and convincing proof that the unconstitutional conduct of the government had not only occurred, but materially affected the result of the Referendum as a whole. The former was established in McCrystal and relied upon by the plaintiff in the petition proceedings; the latter was the main issue in the petitioner’s challenge to the provisional referendum certificate.

31. The plaintiff succeeded in the High Court in obtaining leave to present the petition having satisfied the test set down in s. 42(1) that there was prima facie evidence of unconstitutional conduct by the respondents such as to affect materially the result of the Referendum as a whole. In order to obtain leave the petitioner had to satisfy the court that there was:-

“…

prima facie

evidence adduced which, if accepted and, in the absence of any other evidence, would enable the court to conclude that the unconstitutional conduct may have occurred and that the affect of the breaches of the Constitution of which complaint is made may be such as to have affected materially the result of the Referendum as a whole. The court must be satisfied that the petitioner has established on the evidence advanced in support of the ground upon which leave is sought that there is a fair

bona fide

or serious issue to be tried.”

The court was satisfied that the petitioner reached that threshold. However, the petitioner did not succeed on the second limb of the case and failed to establish the grounds of challenge on the balance of probabilities: that failure prompted the continuation of the present proceedings challenging the constitutionality of the Act.

Presumption of Constitutionality
32. The provisions of the Referendum Act 1994, carry a presumption of constitutionality. In Pigs Marketing Board v. Donnelly [1939] I.R. 413 Hanna J. stated that in considering the constitutionality of a law:-

“…it must, in the first place, be accepted as an axiom that law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.” (at p. 417)

33. In East Donegal (cited above), Walsh J. stated that:-

“An Act of the Oireachtas or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open, but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by the Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the courts.”

This passage was relied upon by Hamilton C.J. in the Hanafin case and the broader interpretation of the conduct the subject of ss. 42 and 43 was clearly informed by these principles.

34. Blayney J. in adopting the same broad construction stated:-

“Section 42, subsection (1) of the Act of 1994 provides that a provisional referendum certificate may only be questioned by a petition to the High Court in accordance with the Act. This means that the only way in which the result of a Referendum may be questioned is by a petition based on the grounds set out in s. 43(1). If the narrow construction of paragraph (b) of s. 3, subs. (1) were adopted it would mean that the Act gave no remedy for any interference with the conduct of the Referendum by the local returning officers other than an interference with the physical aspects of the taking of the poll. An interference which would unlawfully influence the manner in which the electorate voted would be excluded. Such a conclusion would risk giving s. 43(1)(b) an unconstitutional construction so it seems to me that what the court is faced with here is a choice between two constructions, one which is clearly constitutional, and one which may not be since it would exclude as a ground for challenging the provisional referendum certificate a type of interference which could clearly affect the result of the Referendum, and in these circumstances it seems to me that the court must choose the construction which is constitutional where such construction is possible, as in my opinion it is. While this is not a case in which the constitutionality of the Act of 1994 is being challenged, it seems to me nonetheless that insofar as construing the Act is concerned the same principles apply as if the constitutionality of the Act were an issue.” (pp. 441 - 442) (emphasis added)

35. Blayney J. also considered whether the remedy available under the statute was limited to an interference with the poll that had taken place in one of the constituencies or whether it was of broader application. The learned judge was satisfied that the relief contemplated by s. 43(1) which enables a challenge to a provisional referendum certificate on the grounds that the result “as a whole was affected materially” envisaged that though circumstances or conduct might interfere with or obstruct the taking of a poll in one or more constituencies, this should not be a ground for questioning the provisional referendum certificate unless it materially affected the overall result of the Referendum and not simply the result in the particular constituency or constituencies in which the offence or interference took place. Though accepting that the Act did not confer an express power upon the court to direct that the Referendum be taken again in every constituency, he was satisfied that s. 48 of the Act might be construed as impliedly giving that power on the ground that s. 11 of the Interpretation Act 1937, provided that “every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural”. The court was, therefore, empowered to order the retaking of the Referendum in all constituencies when appropriate. Section 18(a) of the Interpretation Act 2005, also provides that a word importing the singular shall be read as importing the plural.

36. The extent of this power was also considered by Barrington J. who agreed that the conduct envisaged by s. 43 of the Act could not be confined to administrative procedures in the taking of the poll but must include any unlawful or constitutional obstruction, interference or hindrance whether connected with the Referendum campaign or the administration of the poll which materially affected the result of the Referendum as a whole. He noted that it might be difficult to envisage the additional obstructions, interferences or hindrances that might arise:-

“They could refer to natural disasters such as floods or earthquakes which might prevent the taking of the poll in certain areas, but they also seem to be wide enough to cover the kind of unconstitutional conduct of which the petitioner complains.” (at p. 454)

37. Denham J. stated (at p. 449) that it was well settled that the protection of constitutional rights through the courts was not dependent on the provision of legislative machinery. However, she added:-

“The law envisaged by Article 46 and now to be found in the Act is capable of being construed, and is so construed, to enable the enforcement of constitutional rights. Thus, there is no need to look outside the statute for the protection of rights.”

The petition in Hanafin was determined on the basis of whether the result “as a whole” was materially affected by the unconstitutional misconduct of the executive which necessitated the retaking of the Referendum in all the constituencies. Clearly the remedy contemplated was whether the court should order a further poll in each of the constituencies in the state because it was contended that the information campaign was directed towards the electorate as a whole and had a nationwide effect. The courts had already exercised jurisdiction as custodians of the fundamental rights of citizens in McKenna (No.2) and “the Act envisaged full access to the courts which has been exercised by the petitioner”. The legislation created an effective form of action to protect rights and afforded a legal process by which the petitioner might seek a remedy (pp. 449 - 450)

38. This Court is bound by the decision of the Supreme Court in Hanafin which recognised the wide ambit of the remedy created by ss. 42 and 43 of the Act. The plaintiff in this case invoked this remedy based on the findings in McCrystal. The court is, therefore, satisfied that a statutory mechanism exists pursuant to these provisions enacted under Articles 46 and 47 of the Constitution which empowers the court to order the retaking of the Referendum in some or all constituencies, if necessary, acting on the proven material affect of unconstitutional wrongdoing by the executive on the result of the Referendum as a whole.

39. There was no challenge to the constitutionality of the relevant provisions in the Hanafin case. However, a different construction of the statute would have left the applicant without access to a remedy in respect of the government misconduct; the construction adopted by the Supreme Court confirmed the availability of a remedy which was in accordance with the duty of the Oireachtas to defend and vindicate the democratic process and the constitutional rights of citizens as outlined in the various judgments of the court.

40. The plaintiff bears the burden of satisfying the court that it should exercise its power under the Constitution to declare the challenged provisions to be repugnant to the Constitution. The Oireachtas was obliged to provide an effective remedy whereby any unconstitutional behaviour which violated the rights of citizens and the democratic process mandated by the Constitution in the course of a Referendum could be addressed, if necessary, by retaking the poll in all constituencies. The presumption of constitutionality attaching to these provisions was considered by the Supreme Court which, mindful of the arguments advanced by the respondents that the remedy available should be limited in its scope and exclude constitutional misconduct from the courts remit, held that the presumption of constitutionality required that the broader interpretation should be applied. It determined that the unconstitutional conduct by the executive was properly the subject of a challenge by way of petition under the Act, and that this interpretation was in accordance with the provisions of the Constitution. This renders the plaintiff’s task of rebutting the presumption and establishing the constitutional invalidity of the sections all the more difficult in that the Supreme Court has already determined that the petition procedure provides an effective remedy for unconstitutional behaviour by the executive, and that a contrary interpretation would itself render the provisions vulnerable to constitutional challenge.

Retaking the Poll as a Remedy
41. The plaintiff contends that s. 48 is constitutionally infirm because it requires the court, in considering whether a Referendum poll should be retaken, to proceed on a constituency basis rather than by way of considering the overall result of the Referendum. Section 18 provides that a Referendum poll must be taken separately in each Dáil constituency. Part III of the Act provides for the separate counting of votes in each constituency and the preparation by the local returning officer of a report which is forwarded to the Referendum returning officer. The provisional referendum certificate is prepared by the Referendum returning officer and the result of the Referendum is determined by counting “the number of votes reported by the local returning officers to have been recorded in each constituency in favour of the proposal and the number of votes similarly reported to have been recorded in each constituency against the proposal”, thereby giving a national result. Article 47.1 of the Constitution provides that every proposal to amend the Constitution submitted to Referendum of the people shall for the purposes of Article 46 be held to be approved by the people “if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law”. A simple majority of votes cast is required before the amendment to the Constitution may be promulgated under Article 46.5.

42. The plaintiff contends that the provisions of s. 48 are “not well suited” to address the consequences of a breach of the McKenna (No.2) principles. While it is accepted that the specific matters addressed in s. 43(1) may give rise to an interference with, hindrance or obstruction of the poll in one or more constituencies, it is submitted that the power to order the retaking of a poll is confined to those constituencies in which the improprieties occurred. It is said that there is no power specifically conferred by the Act to order the retaking of the Referendum in every constituency. Reliance is placed upon the acknowledgment by Blayney J. that the Act is primarily designed to deal with circumstances applicable to the individual constituencies which might materially affect the overall result, and was not designed to address the circumstances which might affect the poll in every constituency. It is submitted that this contention is supported by the fact that the McKenna issues had not emerged at the time of the enactment of the 1994 Act and, therefore, a remedy appropriate to these issues was not contemplated by the legislature.

43. The court is satisfied that these submissions fail to have any proper regard for the decision of the Supreme Court in the Hanafin case. It is clear (as already outlined) that Blayney J. acknowledged that s. 48 might be construed as giving the power to direct that the Referendum be taken again in every constituency. Furthermore, s. 48(2) provides that the Referendum shall not be ordered to be taken again in any single constituency “merely on account” of a non-compliance with the provisions or general principles laid down in the Act or an error where such did not affect the result of the Referendum as a whole. The plaintiff’s petition proceedings were conducted on the basis that the court had the power to order the retaking of the poll in every constituency if the result of the Referendum “as a whole” was materially affected by the misconduct and, indeed, the petitioner also claimed an annulment of the result. The judgment in Hanafin clearly contemplates the making of an order for the retaking of the poll in every constituency in accordance with the constitutional interpretation of the Act. The court may then amend the provisional referendum certificate to reflect the result of that poll pursuant to section 57.

44. Article 47(1) requires only that a simple majority of votes cast in favour of an amendment proposal is necessary to secure its passage. By way of contrast Article 47(2) provides that any proposal other than one to amend the Constitution which is submitted to the people shall be vetoed if a majority of the votes against it amounts to more than one third of the votes on the electoral register. In this way the people have determined that a simple majority will secure the passage of a proposal to amend the Constitution. A simple majority, whether one of 0.56% as in Hanafin, or 16% in this case, provides the constitutionally mandated basis for the promulgation of the amendment. The Act provides for an open and transparent poll to be taken and counted in each constituency and aggregated nationally. It is reasonable and logical that if the majority recorded in the certificate is successfully challenged because the result as a whole was materially affected by unconstitutional conduct by the executive, that the poll be retaken in each constituency by order of the court, if that is what is required.

45. The court is, therefore, satisfied that the section is not limited in the manner submitted by the plaintiff or otherwise constitutionally infirm and empowered the court to make the appropriate order for the retaking of the Referendum in each constituency, had the petitioner succeeded, thereby providing an effective and comprehensive remedy.

Material Affect and the Onus and Standard of Proof
46. The statutory procedure challenged has two stages. The plaintiff’s petition proceeded on the basis that the parties agreed that the evidence adduced from both sides would be considered on the leave application and, if the court granted leave to present the petition on one or more grounds, that the hearing would be treated as the trial of the petition in respect of those grounds on the same evidence. In this case, as in the Hanafin case, the petitioner succeeded in obtaining leave by satisfying the court that such conduct may have occurred and that it may have affected materially the result of the Referendum as a whole. The standard of proof required to obtain leave is calculated to ensure that vexatious and clearly unmeritorious cases are not permitted to impede the proper promulgation of the result of a Referendum poll under the statute and Article 46.5 of the Constitution.

47. The requirement to apply for leave is also a feature of other remedies for the vindication of constitutional rights by way of judicial review under O. 84 of the Rules of the Superior Courts or when initiating a challenge to decisions in the immigration and asylum process, or in respect of planning decisions. The nature of the decision under challenge in a Referendum petition is, of course, of a different order to that of an administrative decision. However, the petitioner does not allege and did not suffer any prejudice arising from the requirement to obtain leave, and the court is satisfied that the challenge to s. 42 on the basis that it requires leave to be obtained before the petition may be presented, has no substance.

48. The hearing of the petition was conducted on the basis that the onus of proof lay on the petitioner to establish that the respondent had acted unconstitutionally and that as a result, the Referendum as a whole had been materially affected by this misconduct. The standard of proof required of the petitioner was to establish her case on the balance of probabilities. The principles upon which the hearing was conducted were derived from the judgments of the Supreme Court in the Hanafin case.

49. The plaintiff claims that this burden of proof, when considered in the light of ss. 7 and 8 of the Act which protect the secrecy of the ballot, imposes “an excessively onerous burden on a petitioner” which fails to provide an effective remedy for the unconstitutional conduct by the executive in the course of the Referendum campaign. It is contended that the petitioner “does not benefit from equality of arms when pursuing a Referendum petition”. It was submitted also that the absence of a provision whereby, upon the establishment of a breach of the Constitution, the onus of proof would shift from the plaintiff/petitioner to the respondents/defendants rendered the provisions constitutionally infirm. It is said that the onus and standard of proof do not allow for the “modulation of the causation requirement to reflect the seriousness of the constitutional breach” or for the practical difficulties of demonstrating that a particular fact “affected materially” the result of the Referendum. In addition, it is claimed that the onus and standard of proof have the potential to confer immunity from suit upon the defendants and fails to provide any or any adequate incentive to comply with the McKenna principles or deterrence from contravening them.

50. It is also claimed that the onus and standard of proof were not devised with a breach of the McKenna principles in mind or from the perspective of upholding the Constitution, a contention which is unsustainable having regard to the careful consideration of these matters in the several judgments of the Supreme Court in Hanafin.

51. The vote of each citizen in a Referendum has equal weight. The proposal to amend the Constitution may only be carried if the majority of votes cast, once counted, favour the proposal. As already stated, the provisions of the Referendum Act 1994, provide in detail for the taking of the poll and the counting of the votes. There is no issue in this case concerning the accuracy of the count or the size of the majority of votes cast in favour of the proposal.

52. The Supreme Court in Hanafin considered the nature and importance of the result under the Constitution. The onus and standard of proof required to negate the result were informed by the core constitutional principle of the sovereignty of the people. As Hamilton C.J. stated in finding that the onus of proof lay upon the petitioner:-

“This is not only required by the Act but is in accord with the constitutional right of the citizen to vote in a constitutional referendum and to have the result thereof accepted, respected and not interfered with unless it is established that such result was materially affected by alleged wrongdoing of such a nature as to vitiate the referendum.” (pp. 426-427)

53. Barrington J. considered the onus of proof in the following way:-

“A great deal of debate took place in this Court and in the court below on the question of the onus of proof which rests on a petitioner to attempt to challenge a provisional referendum certificate. But it appears to me that, whatever the onus is, it cannot be the criminal onus of proof. I accept the force of Mr. O’Donnell’s submission on this point. I could not envisage a situation where this Court, if it were satisfied on the balance of probabilities that the Referendum had been conducted in such a way as to violate the Constitution and materially affect the result, would refuse to quash the provisional referendum certificate. Were it to fail to do so, it would in my opinion fall short of its duty as the final defender of the Constitution.”

Having obtained leave to present a petition, the learned judge stated:-

“At this stage the petitioner has to attack a provisional referendum certificate purporting to record the decision of the people at a referendum. The situation is not unlike that which exists when the President refers to this Court a Bill which has been passed by both Houses of the Oireachtas. The court pays the Oireachtas the courtesy of assuming that it has not violated the Constitution. It, therefore, presumes that the Bill is not repugnant to the Constitution until the contrary is clearly established…Likewise this Court will not lightly set aside what appears,

prima facie

, to be an overt act of the sovereign people. Unless, therefore, what has happened is an express and obvious constitutional abuse affecting the outcome of the Referendum, the onus of proof on the petitioner will be a heavy one. This does not mean that the onus is higher than the civil onus of proof but rather that the court will be particularly vigilant in examining serious allegations.” (pp. 456-457)

Denham J. agreed with Barrington J. (p. 451).

54. O’Flaherty J., also drew on the analogy with the presumption of constitutionality and stated:-

“…here the more pertinent point is that since legislation passed by the Oireachtas…as well as Bills passed by the Dáil and Seanad and which are sent by the President to the court on Article 26 references…enjoy a presumption of constitutionality, so should a decision of the people exercising their law making capacity be respected and enjoy a presumption which is at least as strong. Since the basic presumption is grounded on the respect which one organ of State owes to another and since all powers of government, legislative, executive and judicial, derive under God, from the people (Article 6), it would seem to follow that even greater respect must be accorded to the decision of the people made in a Referendum.” (p. 436)

Later in the judgment he stated:-

“However, no case was made but that each citizen who voted did so in accordance with his or her own free will within the basic meaning of that term. Each voter must, therefore, be taken to have been sufficiently enlightened at that stage on the issue involved to exercise what was a free choice. Therefore, I believe that the presumption of constitutionality in favour of the result has not been displaced.” (p. 437)

55. It is important to emphasise that the remedy available in this case is one “which seeks to override and reverse the sovereign will of the people as expressed in the provisional referendum certificate containing the record of votes cast at the Referendum” (per Hamilton C.J. in McKenna (No.2) at p. 429).

56. The respect due to the will of the people as expressed in a Referendum poll also informs the Supreme Court’s conclusion in Hanafin that in order to succeed in a petition, the result of the Referendum “as a whole” must have been “materially affected” by the unconstitutional conduct. The court rejected the proposition that simply because there was a breach of the Constitution, a material affect need not be proven or might be presumed. Hamilton C.J. placed ss. 42, 43 and 48 in their constitutional context:-

“The will of the people as expressed in a Referendum providing for the amendment of the Constitution is sacrosanct and if freely given, cannot be interfered with. The decision is theirs and theirs alone.

This position is undoubtedly recognised by the Oireachtas in the Act because it provides that the validity of the provisional referendum certificate, which is the document containing the result of the Referendum, can only be questioned if it is established that the wrongdoing or irregularity complained of and set forth in s. 43 of the Act materially affected the result of the Referendum as a whole. In effect, this means that no matter what the nature and extent of the wrongdoing may be, the result of the Referendum cannot be impugned or interfered with if the result of the Referendum as a whole was not materially affected by such wrongdoing...

Counsel for the petitioner has, however, submitted that:-

(a) the Act does not explicitly require the petitioner to establish a “material affect” as a separate requirement of success in a petition;

(b) any consideration of “material affect” necessarily follows a determination that there has been unconstitutional wrongdoing such as to amount to an interference with the conduct of the Referendum and that the logic of the Act demands that the concept of material affect be understood as equivalent to showing that the interference or wrongdoing was not trivial or inconsequential and not a separate matter to be established with almost mathematical certainty by a criminal standard of proof.

I cannot accept that the logic of the Act demands or requires that the concept of material affect be understood as equivalent to showing or establishing that the interference or wrongdoing was not trivial or inconsequential, or that the Act does not require the petitioner to establish that the wrongdoing complained of materially affected the result of the Referendum as a whole.

Sections 42, 43 and 48(2) of the Act of 1994 referred to this requirement…

From a consideration of these subsections of the Act, it is clear that the Act provided and intended that the result of the Referendum as a whole could only be questioned if it was established to the satisfaction of the court that the result was materially affected by the alleged wrongdoing. The onus of so establishing rests on the petitioner who questions the result of the Referendum.

This is not only required by the Act but is in accord with the constitutional right of the citizens to vote in a constitutional referendum and to have the result thereof accepted respected and not interfered with unless it is established that such result was materially affected by alleged wrongdoing of such a nature and effect as to vitiate the Referendum.” (pp. 425-427)

57. The application of the civil onus and standard of proof was entirely in accordance with the constitutional supremacy of the will of the people as evidenced by the provisional referendum certificate. It is entirely reasonable, rational and proportionate that a petitioner who seeks to set aside what is, prima facie, the will of the people properly expressed and freely given should bear the onus of proof of doing so.

The Alleged Impossibility of Proof, Equality of Arms and Immunity from Suit
58. The plaintiff submits that the civil standard of proof is too onerous and renders it impossible for any petitioner to challenge a Referendum result. A challenge to the provisional referendum certificate on any of the grounds set out in s. 43 must be based on cogent evidence which may be difficult to procure or establish. It is clear that the Act contemplates that electoral offences as set out in ss. 134 - 140, 144 - 150 and 152 - 160 of the Electoral Act 1992, as applied by s. 6 of the 1994 Act to Referenda, are susceptible of proof beyond reasonable doubt in whatever constituency they may be committed. It is also clear that s. 43(1)(a) contemplates that the extent of such offending may also be established on the balance of probabilities and whether the Referendum was, as a whole, materially affected thereby. Proof of such offences in a criminal trial or in the course of a petition hearing must not offend ss. 7 and 8 of the Act concerning the secrecy of the ballot. It could not be concluded as a matter of logic that something that is susceptible of proof beyond reasonable doubt is not susceptible of proof on the balance of probabilities.

59. Any breach of the procedural integrity of the Referendum is also capable of proof to the civil standard insofar as there may be a failure to complete or otherwise conduct the Referendum in accordance with the Act. This is also true of any mistake or other irregularity in the conduct of the Referendum or in the particulars stated in the certificate under ss. 43(c) and (d) respectively. Natural occurrences such as flooding or an electricity blackout, a national general strike, or other civil disturbances or disruptions may also amount to an interference with or hindrance of the conduct of a Referendum and are susceptible of proof, as are their consequences under s. 43(1)(b). A combination of any of these potential events would also be subject to and susceptible of proof to the same standard. Apart from the obvious factor that there may be no evidence to support the occurrence of such events or, if they occurred, that there is little or insufficient evidence to support the proposition that the poll result as a whole was materially affected by them, I do not accept that the essential elements of s. 43 are impossible to prove.

60. The plaintiff in this case asserts that having established a breach of the McKenna principles by the executive, it is impossible in any such case to establish that the Referendum result as a whole was affected materially by the misconduct. The plaintiff has identified a number of difficulties that arise in seeking to establish that the overall result of the Children Referendum was materially affected by government misconduct. Some of these difficulties have already been acknowledged in the judgments of the Supreme Court in the Hanafin case.

61. It is said that the secrecy of the ballot prevents or inhibits the gathering of evidence to support the proposition that individual voters were influenced by the government information campaign. Undoubtedly, the secrecy of the ballot ensures that no person is compelled to reveal how or why they voted. Sections 7 and 8 of the Act protect the secrecy of the ballot against any inquiry relating to any ground on which a Referendum might be challenged under s. 43, and necessarily so. The constitutionality of these provisions is not challenged in this case. An essential feature of the democratic process and the integrity of any poll whether in local, national or European elections or referenda, is the constitutional right of the citizen to exercise his/her franchise safely in the knowledge that his/her vote will remain secret for all purposes. The casting of the vote is an exercise of power by each voter and is entitled to equal treatment with all other votes cast and is so counted in the determination of the result of the ballot. A voter is entitled to waive the right to secrecy by revealing how he/she voted after the vote. Frequently, exit polls are conducted: some less sophisticated than others. Interesting and imaginative attempts were made to interpret poll information taken after the Referendum which were put before the court in the course of the petition hearing. The court was not satisfied that the evidence adduced was sufficient to discharge the onus of proof for the reasons set out in the judgment. There is a logistical difficulty in asking each voter how and why they voted, even if each voter was willing to waive the secrecy of the ballot. The secrecy of the ballot is a necessary component of the democratic process, and its existence as a right in a post Referendum assessment of whether the result was materially affected as a whole must be respected and vindicated when providing a remedy for constitutional wrongdoing by the executive. It is not a right the existence and exercise of which may be disregarded or diluted or used to undermine implicitly or explicitly the power and consequence of the votes which have been cast under its protection. It is a fundamental legal reality by which both sides in the petition proceedings are bound.

62. I am satisfied that the remedy provided in s. 43 in the context of the protection afforded to the secrecy of the ballot by ss. 7 and 8 is rational and proportionate having regard to the respect due to the expressed will of the people and the right of each individual to maintain the privacy of the ballot.

63. The plaintiff contends, in a related argument, that the failure of the legislature to provide that a burden of proof in respect of unconstitutional conduct and its consequences should shift to the respondent, once a constitutional breach has been established, renders the legislation invalid. There is no provision for a reversal of the burden of proof as provided in other civil and criminal statutes whereby a rebuttable presumption is established by declaring that a particular fact may be presumed until the contrary is proved. It is submitted that the onus of proof should be reversed because of the difficulties which exist in establishing that the Referendum result as a whole was affected by unconstitutional conduct. It is argued that because the defendants were the wrongdoers, they should bear the burden of proving that the conduct did not affect the Referendum result. It is further contended that a failure to provide for a reversal of the onus of proof and/or placing the burden on the plaintiff/petitioner had the potential to confer a form of immunity from suit for breaches of the McKenna principles upon the defendants. I do not accept any of these propositions. In effect, the plaintiff argues for a presumption that the overall result was affected once a breach of the Constitution has been established which must be rebutted by the defendants and, that once raised and unrebutted, the court should set at nought the poll result and order the retaking of the poll in all constituencies. These propositions are completely contrary to the decision of the Supreme Court in Hanafin and are not supported by authority.

64. The court has already determined in the petition judgment for the reasons set out at paras [61-64] that there is nothing in s. 43 of the Act or the several judgments of the Supreme Court in Hanafin to indicate that once a breach of the McKenna principles was established, the onus of proof shifts to the respondents as wrongdoers or otherwise. These reasons apply equally to the courts rejection of the plaintiff’s submission on the matter in this case.

65. The shifting of the onus of proof to a defendant in civil or criminal proceedings, may be prescribed by statute or arise under common law because it would be unfair to require a plaintiff to prove something beyond his or her capacity but which is “peculiarly within the range of the defendants capacity of proof”, a concept which embraces facts “peculiarly within their knowledge” (see Rothwell v. Motor Insurers Bureau of Ireland [2003] 1 IR 268 at pp. 275-6, per Hardiman J. and Hanrahan v. Merck Sharp & Dohme [1988] ILRM 629 at p. 634 per Henchy J.). I do not consider that evidence as to whether unconstitutional conduct “affected materially” the result of the Referendum as a whole is a matter which is either within the peculiar knowledge of the defendants or exclusively within their capacity to prove or disprove. I am satisfied that a shifting of the burden is not warranted on the well established principles by which such a reversal of onus may occur or is otherwise required because of a right to “due process” or fair procedures under Article 40.3 of the Constitution. It is clear that the Supreme Court in Hanafin had regard to the difficulties of proof asserted by the plaintiff in this case and notwithstanding these difficulties concluded that the civil onus and standard of proof must be borne by the petitioner on a constitutional analysis and interpretation of the statute. In large measure that conclusion was based on the respect due to and the superior status of a decision reflecting the will of the people under the Constitution. Therefore, I am satisfied, that there is no constitutional basis for a legal presumption that the constitutional wrongdoing established could be regarded as having “affected materially” the result of the poll as a whole or a shifting of the burden of proof.

66. I am satisfied that the provisions of ss. 42 and 43 embody a rational and proportionate onus and standard of proof which may, on occasion, be difficult, but is not inherently impossible to discharge. The legislature had due regard to the balance which must be maintained between the necessity to ensure that a referendum campaign must be conducted in accordance with the provisions of the Constitution and that respect which must be afforded to the freely expressed will of the people. In that regard, O’Donnell J. in McCrystal noted that there was:-

“a large and constitutional distinction between restraining a breach of the Constitution by the government (or anyone else) occurring in the course of a referendum campaign and the interference with and setting aside of, a decision made by the people whose right it is in final appeal to decide all questions of national policy.”

67. As noted at para. 49 of the petition judgment, the learned judge was then addressing the defendants contention that the terms of s. 43 required the petitioner to establish in a pre-poll application that the material enjoined contained an unequivocal exhortation to vote in one way and that the misconduct would “assuredly” have a “material affect” on the Referendum result. He stated (at para. 40):-

“The Divorce Referendum which was the background to

McKenna (No.2)

itself provides a clear demonstration of the fallacy of this reasoning. The government campaign was in fact restrained by the Supreme Court in

McKenna (No.2)

but the subsequent decision of the People was not set aside although it was challenged in

Hanafin v. Minister for the Environment

…where the petitioner relied on the self same breaches of the Constitution which had been established in

McKenna (No.2)

and, for good measure, some further matters which emerged thereafter. If the test of material affect as applied in

Hanafin

is applicable in the

McKenna (No.2)

situation, then the plaintiff ought to have failed. Alternatively, if

McKenna (No.2)

is to be understood as an implicit application of the material affect test, then the petitioner in

Hanafin

ought to have succeeded. It is apparent that a different standard applies in any application to set aside the decision of the people once given and for good reason.”

I am satisfied that the onus and standard of proof and the requirement that the misconduct established must have materially affected the result of the Referendum as a whole, are rooted in that distinction and the principle that the freely exercised power of each voter and the equality of voting power as represented by the result must be respected.

68. Furthermore, I do not consider that the burden of proof placed upon the plaintiff has the potential to operate as a de facto immunity from suit. The plaintiff/petitioner initiated proceedings on the basis of a finding by the Supreme Court in the McCrystal case and succeeded in obtaining leave from the court to present the petition having established “prima facie” evidence of the grounds advanced. Full access to the courts was available and utilised. There is no basis for the proposition that the executive was granted immunity under the relevant section. A failure by the respondent to prove her case is simply that, and does not confer a legal or de facto immunity on any of the defendants.

69. The plaintiff also contends that in addition to the principles of constitutional justice nemo iudex in causa sua and audi alteram partem, she was entitled to “equality of arms” in the conduct of the petition proceedings. It was submitted that the onus and standard of proof and the resultant impossibility of establishing her case, violated this principle in that it placed her at a disadvantage in litigation compared to public authorities (the defendants), and in particular, by placing an impossible burden on the plaintiff to establish on the evidence that the breach of the McKenna principles by the defendants had materially affected the result of the Referendum as a whole. I am not satisfied that there is any basis or evidence to suggest a lack of equality of arms, for the reasons already set out. I am completely satisfied that the plaintiff had full and equal access to the courts to vindicate her rights and every opportunity to do so, whether by adducing appropriate evidence or making relevant submissions.

70. The plaintiff also submits that once a breach of the McKenna principles had been established in the McCrystal case, an absolute rule applies which requires the result of the Referendum to be set aside. This submission is based on the rationale underlying the exclusion of unconstitutionally obtained evidence as provided for by the Supreme Court in the People (D.P.P.) v. Kenny [1990] 2 I.R. 110. In that case an absolute rule of exclusion of unconstitutionally obtained evidence was applied in order to deter intentional or reckless conduct by the authorities and to encourage them in a positive way to consider the personal rights of citizens as set out in the Constitution, and the potential affect of their actions on the exercise of such rights. It is necessarily a part of the deterrence argument that the state authorities will have regard to any sanction or punishment that might flow from a breach of the McKenna principles, namely, that the Referendum poll would be set aside. In this case, it was accepted by the plaintiff that there was no question of male fides on the part of the Minister or the other defendants in respect of the Referendum information campaign. The imposition of such an absolute form of redress on the defendants and the setting aside of a Referendum result once a breach of the McKenna principles was established and regardless of how and why it was occasioned, or the result of the breach, focuses upon the wrongdoers. It has little regard for the exercise of their franchise by completely blameless voters. It contemplates the punishment and/or deterrence of state authorities for committing breaches of the principles without the necessity of establishing any consequences. The provisional referendum certificate, prima facie, a record of the freely expressed will of the people, is simply to be set aside: voters who are not guilty of any constitutional error or wrongdoing and who are not deserving of punishment or deterrence would bear the brunt of the remedy to be extracted by the plaintiff. Their respective decisions to vote in favour or against the proposal to amend the Constitution would be set at nought and the majority vote in its favour would simply be swept aside without any or any adequate proof that the actions of which complaint is made had any affect whatsoever on the result.

71. I am satisfied that the application of such an inflexible rule would be entirely disproportionate and incompatible with the sovereignty of the people, the presumption in favour of the Referendum result and the principles adumbrated by the Supreme Court in McKenna, Hanafin and McCrystal and applied by this Court in the petition judgment. It bears repeating, as noted by Hamilton C.J. in Hanafin, that the remedy sought is not borne primarily by the defendants who committed the breach of the Constitution but is one “which seeks to override and reverse the sovereign will of the people as expressed in the provisional referendum certificate containing the record of votes cast at the Referendum”. (p. 429).

72. In addition, the court must also consider the serious collateral consequences of such an approach for those who have exercised their franchise. As O’Flaherty J. stated in Hanafin:-

“A fresh Referendum would have to be held where there would be a different electorate; new voters would have come on the scene and others would have departed for one reason or another. Those who had constituted the

de facto

majority in the void Referendum would complain that their rights had not been properly respected. So the setting aside of a Referendum must be regarded as an awesome undertaking.”

Postponement of a Referendum
73. This aspect of the plaintiff’s challenge concerns ss. 10 and 11 of the Referendum Act 1994. Section 10(1) provides that whenever a Bill containing a proposal for the amendment of the Constitution has been passed by both Houses of the Oireachtas, the Minister for the Environment Community and Local Government shall by order appoint a day for the taking of the Referendum poll. The polling day shall be not less than 30 and no more than 90 days after the date of the order. The Minister is empowered to deviate from this time schedule under s. 11(1) in making the order. If a dissolution of the Dáil occurs, the Minister may appoint the polling day for the general election as the polling day for the Referendum. Under s. 11(2) if the Minister has already made an order appointing a polling day but the Dáil is dissolved before the day appointed, the Minister may amend the order by substituting the polling day for the general election for the date originally fixed in the order. Article 15.3.2 of the Constitution provides that a general election of members of Dáil Éireann shall take place not later than 30 days after the dissolution. It is clear, therefore, that the power to change the appointed polling date is extremely limited and if exercised, is subject to the time constraints of Article 15 of the Constitution. The Minister does not have the power to postpone the holding of a Referendum for any other reasons including a breach of the McKenna principles by the executive.

74. The plaintiff claims that the existence of such a power is essential in order to ensure that if a breach of the McKenna principles is apprehended, whether by the Minister or by the courts, appropriate action may be taken to ensure that the Referendum is postponed to enable the campaign to take place free of unconstitutional interference by government conduct. It was submitted that it was insufficient for the government simply to desist from the information campaign two days from polling day.

75. A complaint is made that no remedy was available to the applicant under the provisions of the Constitution or the 1994 Act whereby appropriate relief might be sought to restrain the holding of the Referendum. In the McCrystal case a declaration was granted in respect of the breach of the McKenna principles. The Supreme Court noted that an injunction was not sought seeking to restrain the holding of the Referendum. The plaintiff in this case initiated proceedings after the appointed day and did not seek to restrain the holding of the poll in advance. The plaintiff in the petition proceedings failed to establish that the breach of the McKenna principles by the defendants was such as to affect materially the result of the Referendum as a whole. A retrospective challenge to the non availability of a statutory power vested in the Minister or a judicial power to alter the date of the Referendum or to compel the Oireachtas to enact legislation granting such a power, or indeed altering the appointed day, is of no relevance at this stage of the proceedings. The court has determined that the poll was lawfully taken and that the decision of the people as recorded in the provisional referendum certificate must stand. It was not established that the result as a whole was materially affected by the government information campaign. The issue as to the existence or non-existence of a remedy by which the Referendum might have been stopped is now moot.

76. The plaintiff contends that the failure to vest a power in the Minister to postpone a Referendum poll when a breach of the McKenna principles has been established constitutes a failure to provide an effective remedy against government misconduct and/or to remedy breaches of constitutional rights, duties and obligations occasioned thereby and to vindicate the constitutional rights of citizens. The defendants argue that the narrowness of the discretion vested in the Minister to change the proposed Referendum polling day is an entirely rational or reasonable determination by the Oireachtas that the people should be entitled to make a decision on a proposal to amend the Constitution promptly once the Constitutional Amendment Bill has been passed and is not open to review by the court. It was submitted that the provisions were intended to avoid any undue political interference, for tactical or other reasons, whereby the appointed polling day might be shifted in order to give a campaign advantage to one or other side of the debate. The plaintiff submits that this justification is not in any way compromised by a narrowly drawn power of postponement in circumstances where that is necessary to remedy any wrongful conduct by the government or others.

77. Both sides now accept that the Oireachtas has the power to enact emergency legislation to provide for a postponement or a power to postpone the Referendum. Any legislation is a matter for the Oireachtas under Article 15.2.1 which provides that “the sole and exclusive power of making laws for the state is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the state”.

78. Sections 10 and 11 are entitled to the presumption of constitutionality. The ministerial power to alter the proposed appointed day is calculated to provide for administrative and cost efficiency in the conduct of two nationwide polls which are required to be taken at or about the same time. The Oireachtas has clearly considered whether it may, on occasion, be appropriate to postpone a referendum poll and having done so, has reached the rational conclusion that the power should be limited in the manner provided. That is a matter which is exclusively within the competence of the Oireachtas which is constitutionally obliged to enact legislation to ensure that the Referendum is regulated and conducted in accordance with law under Articles 46 and 47.

79. It was also submitted that no effective remedy was available to the plaintiff to seek an injunction prior to the Referendum polling day restraining the defendants from conducting the Referendum until such time as a poll free from the consequences of the breach of the McKenna principles could be held. This would have ensured a fade factor during which the effects of the government information campaign would have been dissipated. A period of approximately two to three weeks was suggested by Professor Whiteley and Dr. Bruter in the course of the evidence.

80. In Slattery v. An Taoiseach [1993] I.R. 286 an application was made for an injunction restraining the defendants from holding a Referendum to amend the Constitution until such time as the defendants provided the plaintiffs and citizens of the state with factual information concerning the nature and affect of the Maastricht Treaty. The Bill providing for the Referendum had at that stage been passed by the Houses of the Oireachtas and the Minister had appointed the 18th June, 1992, as the polling day. Proceedings were initiated on 5th June and an injunction was sought in the High Court on 8th June. This was refused and an appeal was heard in the Supreme Court on 10th June. The Supreme Court rejected the appeal and gave its reasons at a later date.

81. Hederman J. stated:-

“The real point in this case is to ask this Court to prevent the operation of legislative and constitutional procedures which are in train. This is something the Court has no jurisdiction to do. What the defendants are doing is implementing the decision of the Dáil and the Seanad. They are not controlling the referendum. There is no constitutional or legal obligation on the defendants to provide funds for those seeking to oppose the referendum… At present the legal situation is that the process is still in the legislative stage and that being so, there can be no injunction against the defendants to prevent them carrying out the directions of the Oireachtas… I am satisfied that the plaintiffs have failed to satisfy this Court there is anything unconstitutional in what is being done by the defendants… A proposal to amend the Constitution cannot per se be unconstitutional and the procedure adopted for so doing cannot be unconstitutional if it complies with the requirements of the Constitution. Nothing in this case has demonstrated any failure to comply.” (pp. 299 to 300)

82. McCarthy J. having outlined the statutory history up to the appointment of the polling day by the Minister stated:-

“Thus was the procedure laid down by the Constitution put in train. The plaintiffs sought the intervention of the courts, the judicial organ of government, to arrest this constitutional procedure, involving both the legislative and executive organs of government, and, further, involving the source of all powers of government, the People. It may be that circumstances could arise in which the judicial organ of government would properly intervene in this process; such is not the case here. In my judgment, the application made by the plaintiffs has no foundation whatever; to grant an order such as sought would be a wholly unwarranted and unwarrantable intervention by the judiciary in what is clearly a legislative and popular domain—see

Finn v. Attorney General and others

[1983] I.R. 154. As the courts are jealous of their constitutional role and will repel any attempt by legislature or executive to interfere in the judicial domain, so must the courts be jealous of what lies wholly within the domain of the legislature, the executive, and the People—jealous to ensure that the courts do not intervene in the constitutional process I have outlined…” (p. 301)

Egan J. was also satisfied that there was no obligation on the defendants to explain or attempt to explain the meaning or consequences of the Treaty and that “it would be totally wrong if the courts were to intervene in a process authorised by the Constitution”. (p. 304)

83. The defendants submit that it was open to the plaintiff to seek an order staying or injuncting the holding of the Referendum on the basis of the Slattery decision. Hederman J. stated that a procedure adopted for amending the Constitution cannot be deemed unconstitutional if it complies with the requirements of the Constitution, but there was nothing in the Slattery case to suggest that there had been any failure to comply. McCarthy J. noted that there may be circumstances in which the judicial organ of government could properly intervene in the amendment process, but such a basis had not been established. Therefore, the defendants (without conceding the jurisdiction of the court to grant such an injunction) submit that the plaintiff’s failure to seek an injunction disqualified her from arguing that there was a non-postponement lacuna in the legislation or the remedies available under the Constitution. However, it is sufficient at this stage to note that the Slattery case does not totally exclude the possibility of moving for an injunction in an appropriate case. No such application was made in the McCrystal case or this case. The difficulties inherent in such an application are significant as may be seen from the judgment of the Supreme Court in Fitzgibbon v. Ireland (Unreported, Supreme Court, 8th June, 2001), in which the court refused to restrain the holding of three Referenda or alternatively, the counting of votes on grounds of insufficient information and inadequate time for debate. Keane C.J. in an ex tempore judgment considered it unnecessary to consider whether there might ever be “exceptional circumstances” in which the court could order the postponement of a Referendum poll and considered that such circumstances would be “so rare and so exceptional that it is difficult to conceive them in practice”. This difficulty necessarily arises from the separation of powers and the respect which the judicial arm of government must show for the constitutional legislative process in which the people express their will on proposals to amend the Constitution.

84. The plaintiff also claims that in the absence of an opportunity to seek injunctive relief, emergency legislation should have been enacted by the Houses of the Oireachtas providing for the postponement of the Referendum or vesting a power in the Minister to defer the appointed day to take account of a fade factor in respect of the government information campaign. The initiation and enactment of legislation is a matter exclusively for the members of the Houses of the Oireachtas. The sponsoring or initiation of legislation by the government or any member of the Houses of the Oireachtas is a matter entrusted to the legislative arm of government and any attempt to direct the legislature as to when, how or why it might enact legislation would be contrary to the separation of powers established under the Constitution. It would also fail to have due regard for the Referendum process as laid down under Articles 46 and 47 of the Constitution.

85. I am, therefore, satisfied for the reasons set out above and at para. 150 of the petition judgment that the plaintiff’s contention that there is a lacuna in respect of the reliefs available under the Act for the postponement of the Referendum poll such as to deprive the applicant of an effective remedy for breach of the McKenna principles must fail.

The Remedy Available
86. The plaintiff claims to have been denied an effective remedy by reason of her inability and failure to establish her case in the petition proceedings. In particular, the plaintiff relies on a number of cases in which it is claimed that once there is a constitutional wrong established, a plaintiff is entitled to a remedy. The nature of the remedy available following a breach of the McKenna principles was considered in the Hanafin case. Denham J. stated:-

“It was submitted that there having been a constitutional wrong that the petitioner is entitled to a remedy: that to fail to grant the petitioner a remedy would be to make a determination that set his constitutional rights at nought.

The State (Quinn) v. Ryan [1965] I.R. 70 was relied upon. In that case garda officers removed a prisoner out of the jurisdiction of the Irish courts on an English warrant with such speed that he had no opportunity to apply to the courts to question the validity of the warrant. Ó Dalaigh C.J. stated at p. 122:-

‘It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and the courts’ powers in this regard are as ample as the defence of the Constitution requires.’

The facts of this case are entirely different. In this Referendum an unconstitutional activity was stopped during the campaign (

McKenna v. An Taoiseach (No.2)

[1995] 2 IR 10) and there has been no bar to the petitioner’s access to the courts at any time. Nor is there any lack of procedure for the petitioner who, while not seeking access to the courts earlier, either before the 17th November or between 17th and 24th November, 1995, has now brought a petition before the courts. The law, as required by the Constitution has been established by the Oireachtas in the Act and has not been set at nought or circumvented. The courts (in

McKenna (No.2))

have exercised already their jurisdiction as custodians of the fundamental rights of citizens, and the Act envisaged full access to the courts which has been exercised by the petitioner.

Walsh J. in Byrne v. Ireland [1972] I.R. 241 stated at p. 281:-

‘Where the people by the Constitution create rights against the state or impose duties upon the state, a remedy to enforce these must be deemed to be also available.’

The absence of a remedy is not in issue here: it existed as exercised in

McKenna (No.2)

and this very case illustrates the existence of a process for remedy to the petitioner. Legislation has created a form of action to protect rights.”

87. I am satisfied that the same comprehensive and effective structure of remedies for breach of the McKenna principles and protection of the democratic process as mandated by the Constitution for the holding of referenda was available to and availed of by the plaintiff in this case. I am not satisfied for the reasons set out above and having considered all of the evidence and submissions in the case, that the plaintiff has rebutted the presumption of constitutionality as it applies to the challenged provisions.

European Convention on Human Rights
88. The plaintiff seeks declarations that the provisions of the Referendum Act 1994, are incompatible with Articles 6, 10, 13 and 14 of the European Convention on Human Rights, and what are called “Comparative and International Standards” applicable to the conduct of referenda. It is claimed that the plaintiff was denied fairness of procedures in the petition proceedings and that the provisions of the Referendum Act 1994 are incompatible with the provisions of Article 6. It is also claimed that the conduct of the defendants violated the plaintiff’s right to freedom of expression under Article 10 because they failed to respect the right to hold opinion and freely receive and impart information and ideas “without interference by public authority” and to fulfil their positive obligation to ensure freedom in public debate.

89. It is important to recognise that the rights set out under the Convention may only be made part of domestic law by incorporation by the Oireachtas under Article 29.6 of the Constitution. A claim may not be made to this court that the rights set out in the Convention have a direct legal effect in this jurisdiction other than pursuant the terms of the European Convention on Human Rights Act 2003 (J.McD -v- P.L.[2010] 2 IR 199).

Article 6
89. Article 6(1) provides:-

“In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing…by an independent and impartial tribunal established by law…”

The plaintiff relies upon the same arguments concerning the onus and standard of proof, the absence of a shifting burden, an alleged inequality of arms and impossibility of proof as were rejected in the constitutional challenge in contending that ss. 42 and 43 of the Referendum Act 1994, are incompatible with the provisions of Article 6. I do not accept that the cases of Delcourt v. Belgium [1979 80 1 EHRR 355 or Dombo Beheer BV v. Netherlands [1994] 18 EHRR 213 offer any assistance to the plaintiff in establishing an absence of equality of arms between the parties in presenting their respective cases to the court. I am entirely satisfied that the plaintiff was afforded a reasonable opportunity to present her case and that she was not placed under any disadvantage by the state. I am also satisfied that the onus and burden of proof imposed upon the plaintiff were not impossible or so onerous as to infringe Article 6, and I do not consider that the cases of Dyuldin and Kislov v. Russia [2009] 48 EHRR 6 or Metalco BT v. Hungary Application No. 34976/05 (1st February, 2011) to be of any relevance or assistance.

Article 10
90. Article 10 provides that everyone has the right to freedom of expression which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority. The restrictions permissible under Article 10(1) and (2) are not relevant to these proceedings. Article 14 contains a prohibition of discrimination and provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as political or other opinions.

91. It was submitted that freedom of expression under Article 10 was at the heart of the McKenna principles and that the government funded campaign operated as a restriction on political speech in that it silenced freedom of expression since the government campaign dominated the debate. In addition, it was contended that the principle of equality between participants in the Referendum debate was violated by the government campaign.

92. The plaintiff submits that the breach of the McKenna principles which coincide with the principles of Article 10 and 14 necessarily involves a breach of the same Articles. This does not necessarily follow and there is no case law of the European Court directly on the point. However, even if it is assumed to be correct, the court has already determined the remedy appropriate to the breach. The principles upon which relief was granted by the Supreme Court in McCrystal were based upon the McKenna (No.2) principles summarised by Denham C.J. at pp. 754 - 756 of the judgment. These principles require that a publicly funded publication concerning a Referendum must be fair, equal, impartial and neutral. The declarations granted to the plaintiffs in McKenna (No.2) and McCrystal prior to the holding of the respective Referendum polls provided an immediate and effective remedy for the unconstitutional expenditure of public money established on the evidence. Equality, fair procedures and freedom of expression were the core constitutional principles upon which the relief was based in both cases. The findings in McCrystal based on these principles constituted an essential element of the plaintiff’s petition at the leave and post-leave stage of the proceedings. It is clear that in respect of the breach of these principles an immediate and effective domestic remedy was available.

European Convention on Human Rights Act 2003
93. The jurisdiction of the court to grant domestic relief in respect of the state’s obligations under the Convention is defined by the provisions of the European Convention on Human Rights Act 2003. Section 3(2) of the Act provides for a remedy in damages as compensation for loss or damage suffered by a claimant where a state organ as defined under the Act has failed to perform its duties in a manner compatible with its obligations under the Convention “if no other remedy in damages is available”. Section 5 provides that a court may grant a declaration that a statutory provision or rule of law is incompatible with the state’s obligations under the Convention where no other legal remedy is adequate or available. The effect of a declaration is limited in that it does not affect the validity, continued operation in law or enforcement of the provision challenged. An ex gratia award may be made by way of compensation for loss or damage suffered by reason of the incompatibility.

94. Section 2(1) provides that in interpreting and applying any statutory provision or rule of law, a court shall, insofar as possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the state’s obligations under the Convention provisions. Section 4 provides that judicial notice shall be taken of Convention provisions and of any judgment of the European Court of Human Rights. It further provides that when interpreting and applying the Convention provisions, a court shall take “due account” of the principles laid down by any such judgment. Section 1 provides that a “Convention provision” means Articles 2 to 14 of the Convention and a number of protocols including the Paris Protocol of 20th March, 1952, Article 3 of which requires the contracting parties to hold free elections at reasonable intervals by secret ballot which will ensure the free expression of the people in the choice of legislature.

95. The plaintiff contends that the Referendum Act 1994, as interpreted by the Supreme Court does not provide a remedy for the violation of the plaintiff’s constitutional or Convention rights as a result of a breach of the McKenna principles. The plaintiff’s claim that the statute is invalid because a number of its provisions are repugnant to the provisions of the Constitution has failed. The court is now asked to interpret the statute in accordance with ss. 2 and 4 of the 2003 Act in a manner said to be compatible with the provisions of the European Convention and, in particular, Articles 6, 10, 13 and 14 thereof and the Code of Good Practice on Referendums adopted by the Venice Commission. The court is also asked to grant declarations that provisions of the Referendum Act 1994 are incompatible with the Convention.

96. The 2003 Act applies to “Convention provisions” as defined under s. 1. This includes the “Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms” made in Paris on 20th March, 1952, set out in Schedule II to the Act, and in particular, Article 3 which applies to the right to free elections and states:-

“The high contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people and the choice of the legislature.”

Under article 5 of the Protocol Article 3 is to be regarded as a right under the Convention. However, in Niedzwiedz v. Poland [2008] 47 EHRR 2, the European Court of Human Rights reiterated that the obligations imposed on contracting states were limited to “the choice of legislature” and did not apply to referenda (applying Hilbe v Liechtenstein (application no. 31981/96) (Fourth Section 7th September, 1999)). It is clear therefore, that the conduct and results of Referenda are outside its scope. There is no basis to grant any relief under Article 3 pursuant to the provisions of the 2003 Act. . Even if this were not so, the plaintiff would have to establish her claim for declaratory relief within the ambit of s. 5 of the Act.

Carmody
97. The exercise of the courts jurisdiction under s. 5 was considered by the Supreme Court in Carmody v. Minister for Justice [2010] 1 IR 635, in which Murray C.J. stated:-

“48. … it must be noted, that s. 5(1) in conferring on the High Court, or this court on appeal, jurisdiction to make a declaration concerning a statutory provision or rule of law only arises "where no other legal remedy is adequate and available".

49. Where a citizen's constitutional rights are violated, statute law or some other rule of law may provide a remedy which vindicates such rights. Where a statute or a rule of law does not provide a remedy for the violation of such a right the citizen is entitled to rely on the provisions of the Constitution for a remedy in vindication of the right. That is what the plaintiff has done in this case in relying on the provisions of the Constitution, and the principles which flow from it, as affording him a remedy for the alleged breach of his rights. It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is "subject to the Constitution".

50. Accordingly, the court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State's obligations under the Convention, the issue of constitutionality must first be decided.

51. If a court concludes that the statutory provisions in issue are incompatible with the Constitution and such a finding will resolve the issues between the parties as regards all the statutory provisions impugned, then that is the remedy which the Constitution envisages the party should have. Any such declaration means that the provisions in question are invalid and do not have the force of law. The question of a declaration pursuant to s. 5 concerning such provisions cannot then arise. If, in such a case, a court decides that the statutory provisions impugned are not inconsistent with the Constitution then it is open to the court to consider the application for a declaration pursuant to s. 5 if the provisions of the section including the absence of any other legal remedy, are otherwise met.”

98. In Pullen v. Dublin City Council [2009] 2 ILRM 484 at 496 Irvine J. stated that:-

“The legislature did not intend to provide any remedy that would have the affect of displacing or curtailing the operation or enforcement of any constitutionally valid provision of national law.”

I am satisfied that the remedy provided in McCrystal, namely a declaration that the defendants committed a breach of the McKenna principles and the provisions of the Referendum Act 1994, under which the plaintiff challenged the result of the Referendum poll, provide an immediate, adequate and effective remedy for breaches of constitutional rights. These rights are said to be substantially the same as those asserted by the Plaintiff under Articles 6, 10, 13 and 14 of the Convention and based upon the same principles. The Act provides a remedial scheme protecting the plaintiff and the people from the material consequences, if any, of any breach for the Referendum poll as a whole. Consequently, since an effective remedy was available to and exercised by Mr. McCrystal and the plaintiff under domestic law, I am not satisfied having regard to the provisions of ss. 2 to 5 that the plaintiff is entitled to any relief under the 2003 Act.

The Venice Commission
99. The European Commission for Democracy through Law known as “The Venice Commission” was established in May, 1990 by eighteen Council of Europe Member States. Its task is to provide states and/or organs of the Council with legal advice in the form of opinions on draft legislation or legislation already in force and constitutional matters submitted to it for examination. It operates under a statute adopted by the Committee of Ministers of the Council of Europe on 21st February, 2002, which confirmed its role as an independent consultative body having the following objectives:-

“- Strengthening the understanding of the legal systems of the participating states, notably with a view to bringing these systems closer;

- Promoting the rule of law and democracy;

- Examining the problems raised by the working of democratic institutions and their reinforcement and development.”

It is composed of independent experts nominated by the various states participating in the Commission. It is authorised to prepare studies and draft guidelines, laws and international agreements. Its proposals may be discussed and adopted by the statutory organs of the Council of Europe.

100. The Code of Good Practice on Referendums (the Code) was adopted by the Council for Democratic Elections (consisting of representatives of the Venice Commission, the Parliamentary Assembly of the Council of Europe and the Congress of Local and Regional Authorities of the Council of Europe) on 16th December, 2006, and the Venice Commission on 16th to 17th March, 2007. Though referred to as a Code, the introduction refers to the rules and accompanying explanatory memorandum as “Guidelines on the Holding of Referendums”. The Venice Commission has no law making power and acts strictly in an advisory capacity. The members of the Commission do not represent or act on behalf of their respective governments, though appointed by them.

101. In McCrystal, Denham C.J. and Murray J. made reference to the Code. Denham C.J. quoted Article 2.2 in respect of equality of opportunity which must be guaranteed to the supporters and opponents of a proposal submitted for Referendum. It states that a neutral attitude should be adopted by administrative authorities in relation to the Referendum campaign, coverage by the media, public funding of the campaign and its actors, bill posting and advertising and the right to demonstrate. Article 3.4 in respect of funding requires that the use of public funds by the authorities for campaigning purposes be prohibited. Paragraph 25 of the explanatory memorandum appended to the Code states that public funds must not be used by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion. It was clear, therefore, that the McKenna principles were in concordance with the Code. (paras. 47 and 48)

102. Murray J. noted that the principles underpinning the Referendum process under the Irish Constitution concerning public expenditure on Referendum campaigns were similar to those applied in other countries and were largely contained in the Code. (para. 39)

103. There is nothing in the judgments of the Supreme Court to suggest that these guidelines have any direct application in Irish law pursuant to the 2003 Act or provide the basis for the assertion of any right under the Constitution or the Convention because they represent an internationally accepted standard or generally recognised principles of international law for the proper conduct of Referendums or otherwise.

104. The plaintiff submitted that though there was no judgment of the European Court of Human Rights which specifically adopted and applied the principles of the Venice Commission as set out in any of its reports and more particularly, in respect of the conduct of a Referendum, or to suggest that such a report was in any way binding as a matter of law, nevertheless judicial notice should be taken of the Code under s. 4 of the Act. Particular reliance was placed on the courts obligation under s. 4 to take due account of the principles laid down by the “declarations, decisions, advisory opinions, opinions and judgments described in subs (a), (b) and (c)”. However, it was accepted by the plaintiff that the Code did not qualify specifically as one of the matters to be taken into account under the subparagraphs.

105. Nevertheless, the plaintiff submits that the provisions of the Referendum Act 1994, fail to comply with the provisions of the Code or guidelines and, in particular, Article 3.3 which states:-

“3.3 An effective system of appeal

A. The appeal body in Referendum matters should be either an Electoral Commission or a court. In any case, final appeal to a court must be possible.

B. The procedure must be simple and devoid of formalism, in particular where the admissibility of appeals is concerned.

C. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). The law must specifically designate the competent body in each case.

D. The appeal body must be competent to deal with the sphere covered by these guidelines, in particular with:

- the franchise and electoral register;

- the completion of popular initiatives and requests for referendums from sections of the electorate;

- the procedural and, where applicable, substantive validity of text submitted to a referendum;

- the review of the validity of text should take place before the vote;

- domestic law determines whether such review is obligatory or optional;

- respect for free suffrage;

- the results of the ballot.

E. The appeal body must have authority to annul the Referendum where irregularities may have affected the outcome. It must be possible to annul the entire Referendum or merely the results for one polling station or constituency. In the event of annulment of the global result, a new Referendum must be called.

F. All voters must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters against the results of a Referendum.

G. Time limits for lodging and deciding appeals must be short.

H. The applicant’s right to a hearing involving both parties must be protected.

I. Where the appeal body is a higher Electoral Commission, it must be able ex officio to rectify or set aside decisions taken by law or Electoral Commissions.”

It is submitted that these guidelines constitute generally recognised principles of law internationally and must be applied by the court in interpreting the provisions of the Referendum Act 1994, and/or provide the basis for a legally enforceable domestic right under the Convention.

106. I am satisfied that in addition to the concordance of the McKenna principles with the Code, the provisions of the Referendum Act 1994, in respect of challenges to or appeals against the results of a Referendum are entirely in accordance with Article 3.3. Thus, even if the Code had any domestic legal effect, I am not satisfied that the plaintiff could possibly succeed in establishing a breach of Article 3.3 by the defendants.

107. The Code does not have any direct affect in Irish law and does not confer any rights on the plaintiff arising from the conduct of referenda. It does not give rise to any legitimate expectation that its terms may be relied upon under domestic law.

108. The status and effect of generally recognised principles of international law is dealt with under Article 29.3 of the Constitution which provides:-

“Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states.”

In Kavanagh v. Governor of Mountjoy Prison [2002] 3 IR 97, the Supreme Court rejected the proposition that the ratification by Ireland of the United Nations Convention on Civil and Political Rights conferred a legitimate expectation upon the plaintiff that the state would respect the terms of the Covenant and would take steps to give effect to the view of the United Nations Human Rights Committee which heard complaints taken under the Covenant, and which ruled that the applicant’s trial by the Special Criminal Court violated the guarantees of equal treatment under Article 26 thereof . Though accepting that the principle of equal treatment was a generally recognised principle of international law, Fennelly J. stated (at p. 126):-

“The difficulty for the applicant, on this application does not lie in the quality of the principle of equality. It is to be found in the wording of the constitutional provisions. The obligation of Ireland to respect the invoked principles is expressed only in the sense that it is to be “its rule of conduct in its relation with other states”. It is patent that this provision confers no rights on individuals. No single word in the section even arguably expresses an intention to confer rights capable of being invoked by individuals.”

109. Fennelly J., when considering the views expressed by the United Nations Human Rights Committee stated that:-

“The notion that the “views” of a Committee even of admittedly distinguished experts on international human rights, though not necessarily lawyers, could prevail against the concluded decision of a properly constituted court is patently unacceptable.”

The guidelines in the Code reflect the opinions of legal experts as to best practice. They have not been adopted by any of the organs of the Council of Europe. They are not the subject of an international agreement. In this jurisdiction the Supreme Court has noted that the McKenna principles are in compliance with the Code, but there is nothing in that observation that confers any legal effect on the guidelines.

110. In Re Ó Laighléis [1960] I.R. 93, the Supreme Court held that since the Oireachtas had not incorporated the European Convention on Human Rights and Fundamental Freedoms as part of the domestic law of the State, the court could not give effect to the Convention if it were contrary to domestic law or purported to grant rights or impose obligations additional to those established under domestic law, because of the provisions of Article 29.6 of the Constitution which provided that:-

“No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”

This position was reaffirmed in Kavanagh (supra), Murphy v. GM [2001] 4 IR 113 and Horgan v. An Taoiseach [2003] 2 ILRM 357).

111. In Ó Domhnaill v. Merrick [1984] I.R. 151 Henchy J. noted that the statute in issue in that case was enacted “subject to the postulate that it would be construed and applied in consonance with the state’s obligations under international law, including any relevant Treaty obligations”. I am satisfied that there is nothing in the terms of Article 6, 10, 13 or 14 of the European Convention or the Venice Code with which the McKenna principles or the remedies provided under the Referendum Act 1994, as interpreted by the Supreme Court, are incompatible.

Conclusion
112. I am satisfied for the all of the reasons set out above that the plaintiff’s claim must be dismissed.

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