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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Re: Referendum Act & re: Jordan and Jordan -v- Minister for Children and Youth Affairs & ors [2015] IESC 33 (24 April 2015)
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Judgment
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[Appeal No. 432/13] Denham CJ Hardiman J O’Donnell J Clarke J MacMenamin J Laffoy J Dunne J In the Matter of the Referendum on the Proposal for the Amendment of the Constitution contained in the Thirty-First Amendment of the Constitution (Children) Bill held on the 10th November 2012
Joanna Jordan Petitioner/Appellant and
The Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General Notice Parties /Respondents and [Appeal No. 342/2014]
Joanna Jordan Plaintiff/Appellant and The Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General Defendants /Respondents Judgment of Mr. Justice John MacMenamin delivered on the 24th April, 2015
1. I agree with the judgment and orders proposed by the Chief Justice, O’Donnell J. and Clarke J. I also agree with, and endorse the judgment of the Chief Justice, which analyses the 1994 Referendum Act in detail, and the principles set out in O’Donnell J.’s judgment under the heading “The Test”. No part of this judgment is, in any way, to be read or interpreted as differing from what is said in the relevant and material principles and analysis contained in those judgments. I concern myself here with a focus on three issues; first, the procedure involved in the High Court hearing; second, some of the constitutional considerations which arise in interpreting the Referendum Act 1994; and third, some observations on the interpretation and application of the judgment of this Court in Hanafin v. Minister for the Environment [1996] 2 IR 321. The Origins of the Proceedings 3. In both the petition and the plenary proceedings herein, Ms. Jordan not only challenged the misconduct addressed in McCrystal, but also placed in issue what, she contended, was further wrongful conduct by the State parties, following on from the ruling of this Court on the 8th November, 2012 (“the post-ruling conduct”). The McCrystal ruling was delivered during the currency of the referendum campaign, just 2 days prior to the vote. 4. These proceedings seek far more radical relief than in McCrystal, however. Ms. Jordan asserts that, in order to uphold the McKenna principles (which have not been in any way placed in issue in these proceedings), the result of the Referendum should be annulled and a new referendum held. Alternatively, she contends, that insofar as the statutory machinery for challenging a referendum outcome, contained in the Act of 1994, places the onus of proof on a petitioner; it sets an “impossible” threshold of proof, and is thereby invalid having regard to the Constitution. It is said the Act fails adequately to provide for remedies for breach of the McKenna principles; and that, insofar as the judgment of this Court in Hanafin v. The Minister for the Environment [1996] 2 IR 321 supports McDermott J.’s rulings herein as to onus, standard of proof, procedure, and remedy; then that judgment was wrongly decided. 5. In McCrystal, this Court has already delivered a judgment wherein it granted a remedy, in the form of a declaration, saying, in terms, that the State parties had engaged in campaign misconduct. The appellant finds herself in a situation, therefore, where her case is met with the State response that, both the public interest, and the common good, have already been vindicated by the judgment of this Court in McCrystal, and that the respondents’ misconduct has already been addressed and condemned. Thus, the challenge facing the appellant is both very focused and very deep. But it is made in the circumstance where there has now been an expression of the will of the sovereign people voting in a Referendum, after a legal remedy was granted. Save insofar as these proceedings raise what is termed “post-ruling conduct”, i.e. conduct of the respondents after the ruling of this Court on the 5th November, 2012; the courts in these proceedings have, in effect, been asked to re-traverse, but with different terms of reference, legal terrain which has already been much explored. 6. The petition and plenary proceedings are considerably interwoven. This judgment addresses issues arising in both appeals. Assuming that the trial judge correctly applied the Act of 1994, and the principles identified in Hanafin; one broad central issue in this appeal is, whether the Referendum Act of1994 was applied in a manner consistent with the Constitution. It follows that, if, when considered in its factual context, that Act was properly applied in the High Court, and is constitutionally valid, then the totality of the appellant’s proceedings must fail. The Reason for Analysis of the Evidence in Detail 8. In the vast range of cases on appeal a very close analysis of the evidence may be unwarranted, provided it is shown that the trial judge reached conclusions which were supported by evidence. This appeal, to my mind, is something of an exception, in that, if the appellant were to succeed; a public undertaking in participative democracy, in which hundreds of thousands of citizens engaged, would be annulled. What occurred in this case merits some general observations. The Nature of the Evidence and Democratic Process 10. The Act of 1994 envisages a two stage process; first, leave, and second, a plenary hearing. On consent, the parties agreed that the leave application be adjourned to the plenary hearing. This course was justifiable in this case, in light of the fact that, exceptionally, this Court had already delivered its ruling and judgment in McCrystal, declaring that there had been breaches of the McKenna principles. Relying on the judgments in McKenna and Hanafin, the State parties adduced expert evidence which had the effect of placing the appellants in a position of having to resort to econometric evidence deploying “regression analysis” as a mode of determining what the outcome might have been but for the campaign misconduct. The High Court judge held that the data upon which the appellant sought to base her case did not readily lend itself to such analysis. The clarity of exposition in the High Court judgments contrasts vividly with the density of some of the testimony. It is an interesting, but fortunately unnecessary, exercise to speculate what might have been the effect on public confidence had the judge been persuaded, upon that econometric evidence, that the State’s conduct had, in fact, materially affected the result of the referendum. While I do not deprecate the use of such evidence in the future, I question whether an outcome based so very much on such testimony would have the required public trust and, therefore, democratic legitimacy. The intent of the judgments herein is to clearly identify the tasks facing a trial judge, so that a procedure to challenge a referendum outcome should be shorter, less costly, and clearer and engender trust. It might be said that the test adopted by the unanimous court is itself predicated on trusting the outcome of a referendum. 11. Part of this judgment considers the evidence adduced in the High Court. In considering that testimony, it is helpful to reiterate two of the principles from Hay v. O’Grady [1992] 1 I.R. 210. First, if the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings; however voluminous and apparently weighty the testimony against them. Second, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact, where a different inference has been drawn by the trial judge. However, in the drawing of inferences from circumstantial evidence, an appellate court is in as good a position as a trial judge to proceed. Insofar as findings of fact are made by the trial judge and were supported by credible evidence, subject to the provisos observed above, therefore, this Court is bound by those findings. In fact, the vast weight of the evidence focusing on the issues to be determined, favoured the respondents. Observations on the Evidence as a Whole The Events Prior to the Referendum The McCrystal Decision The Size of the Majority The Referendum Commission Areas of Agreement in the Evidence Relevant Provisions of the Referendum Act, 1994
(a) in the case of a constitutional referendum, the number of votes recorded in favour of the proposal which is the subject of the referendum, the number of votes recorded against the proposal, and whether a majority of the votes recorded at the referendum was or was not recorded in favour of the proposal; …”
(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 subsection (2) to present a referendum petition unless it is satisfied— (a) that there is prima facie evidence of a matter referred to in section 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. …” (emphasis added)
(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6 ), (b) obstruction of or interference with or other hindrance to the conduct of the referendum, (c) failure to complete or otherwise conduct the referendum in accordance with this Act, or (d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.” (emphasis added)
(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.”
(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. … (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. As can be seen from s.42 of the Act of 1994, the first step is an application for leave. The judge was satisfied that the totality of the evidence adduced established a fair, bona fide or serious issue to be tried. The effect of this finding was that he held, pursuant to s.42 (3)(a) of the Act, that there was prima facie evidence of a “matter” referred to in s.43, in relation to which the Referendum petition questioned the provisional referendum certificate concerned, and that, prima facie, the said “matter” was such as to affect materially the results of the referendum, as a whole. Here he was referring to the test referred to in s.43(1)(b) of the Act, that is to say, obstruction of, or interference with, or other hindrance of the conduct of the referendum. 22. The judge held that some parts of the evidence, taken in isolation, would not have justified a decision to grant leave. He referred particularly to that which had, in good faith, been provided to the court by the ‘fact and opinion’ witnesses referred to later. However he went on to observe that the issues, once raised, had to be considered in light of the determination by this Court that the McKenna principles had been breached; thus embracing a narrative covering the entire referendum campaign, and the government information campaign, including its three significant elements, comprising the government booklet, website, and advertising. Proceeding on the basis of the McCrystal decision, therefore, he reached the view that there was prima facie evidence justifying granting leave, namely, unconstitutional conduct by the Executive. 23. Having heard the totality of the evidence at the full hearing, the judge reiterated his conclusion that the appellant had raised a serious issue to be tried, that is, that the government information campaign had the potential to materially affect the result of the referendum, as a whole. However, having considered all the evidence, and applying the principles established by this Court in Hanafin, he was not satisfied that on the balance of probabilities the petitioner had established grounds sufficient to annul the referendum result. 24. It is abundantly clear that the trial judge considered, in great detail, the provisions and requirements of ss. 42 and 43 of the Act, in the context of the Hanafin judgments. One might surmise, therefore, that it was the absence of sufficiently cogent probative testimony, and the force of the rebuttal evidence which constrained the appellant, first, to challenge the constitutionality of the 1994 Act, and, second, necessarily, to challenge certain of the findings of this Court in Hanafin. Fact and Opinion Witnesses 26. These witnesses were the appellant herself; Mr. Michael Fitzgibbon; Mr. Nicholas Gargin; Mr. Daniel Ward; and Ms. Deirdre Ui Ghóibín. 27. Some of those witnesses, including the appellant herself, and Mr. Michael Fitzgibbon, intended to vote no and actually voted that way. The judge felt this in no way affected the truthfulness and credibility of their testimony. Both were actually campaigners for a ‘no’ vote. Thus, the government material did not affect them. 28. By contrast, Mr. Nicholas Gargin, a part-time student of Sports Management, said he had voted ‘yes’ in the referendum, and read the government booklet before voting. During his Christmas holidays, however, and after the poll, Mr. Gargin discovered that the Supreme Court ruling had been made. He testified that, had he found out about the McCrystal ruling before polling day, he would have been angry at the government’s behaviour, particularly so in the light of the Supreme Court judgments which he read. Had he known about the government wrongdoing he would have voted ‘no’ in the referendum. 29. Mr. Daniel Ward, a farmer on Arranmore, Co. Donegal, intended to vote ‘no’, but then read the booklet and was aware of the advertising by the government. He assumed the government would be impartial. When he read the materials he became uncertain as to whether he should vote ‘no’, and eventually decided not to vote at all. 30. Ms. Deirdre Ui Ghóibín was also a ‘no’ campaigner. She testified that family and friends with whom she discussed the matter were surprised at the government’s misconduct. She considered there was not enough factual information available in the government materials. She believed these materials had an influence. 31. But, the trial judge observed, Ms. Ui Ghóibín could not give any details of any specific discussion she had had about the booklet. In summary, therefore, and on the basis of the trial judge’s findings, just one of these witnesses intended to vote no, and instead did not vote at all. 32. The trial judge assessed their testimony in the context of the application for leave to bring the petition:
Mr. John Waters The Judge’s Opinion on the Fact and Opinion Evidence The Expert Evidence Introduction
Supporting Families Removing inequalities and adoption Recognising Children in their own right”. The Issue of “Affect” The Expert Evidence 40. The appellant’s case relied heavily on evidence from Dr. Michael Bruter, a leader in Political Science specialising in electoral psychology at the London School of Economics. He is an eminent scholar in the discipline. Dr. Bruter was originally retained by the appellant’s solicitor to provide an expert opinion as to:
(ii) Whether, following the decision of the Supreme Court in the McCrystal case on 8th November, 2012, delaying the vote would likely have resulted in a materially different result. 42. The scope of Dr. Bruter’s retainer did not, therefore, precisely fit the provisions of s.43 of the Referendum Act, 1994. To ask whether material provided by the government was “likely” to have influenced how votes were cast; is different from assessing whether the “result of the referendum, as a whole”, was “materially affected” by ‘misconduct’, in the words of s.43 of the Act. Dr. Bruter examined the possible effect of the materials supplied by the government by asking how that information “privileged a specific answer (yes or no)” from a “political behaviour point of view”. It will be noted, the evidence used a series of entirely legitimate terms in political science, but which did not correspond with the statutory tests. 43. Having identified the relevant ways in which the “yes” or “no” answer had been “advantaged”, the witness sought to assess whether this was “likely to have had a material impact on the way citizens voted”, considering the characteristics of the referendum. 44. Dr. Bruter pointed out that government material portrayed the proposal as one associated with multiple positive, and a complete absence of negative outcomes; that the campaign booklet was explicitly represented as stemming from, and/or legitimised by, non-partisan, neutral, and prototypically competent sources; that the narrative of the proposal was said to answer a possibly urgent need; and was expressed by the use of rhetoric which focused on emotion, and likely to induce a possible feeling of guilt amongst those not supporting the proposal. In short, he said, the material purported to be “neutral”, but was not. 45. The witness testified that the referendum was one of “low salience”, i.e. it addressed a question which was obscure to people, or about which they knew very little. He considered what are termed “cues” and “influences”. “Cues”, are understood as sources which collect, summarise, and report information on the pros and cons of a “yes” or “no” vote. Such sources might be regarded as neutral. Dr. Bruter accepted that political scientists were not agreed as to whether cues or influences matter most, but felt that the perception of whether the source of a cue was neutral, or partisan, had a major effect on the way voters would treat the information provided. A partisan source would likely be heavily discounted; by contrast, maximum credit would be afforded to information from a “neutral” cue source. He testified that the lower the salience of a referendum, the more likely it was that a voter would cast his or her ballot based on principles received or adopted through various cues. He concluded that, in this low salience referendum, voters would be highly dependent on information cues (in this case the government information); that the perceived nature of a source was a major determinant as to how influential the information would be; and, that, (in terms of the potentially strong impact of external inferences), in such a low salience referendum, any element which was likely to give additional credit or discredit to government would have a strong effect on the result. The Referendum Commission Survey The Field Work 48. Although the poll had not been designed to ascertain whether, or why, people voted “yes” or “no” in the referendum, the appellant sought to base a substantial part of her case on Dr. Bruter’s conclusions, reached following his analysis of the raw data. Professor Michael Marsh, Professor of Comparative Political Behaviour in Trinity College, Dublin, who testified for the State respondents, disagreed with Dr. Bruter’s methodology. The trial judge commented that the arguments advanced in this area were “detailed and technical and of rather narrow focus”. This was a considerable understatement. 49. Some of the expert testimony, presented at the hearing, touched on issues where, even among political scientists, there is no consensus. Dr. Bruter’s exercise must be seen as a response to Professor Michael Marsh’s testimony, whose evidence is described later. 50. In summary, Dr. Bruter sought to establish that a “link” could be shown between receiving the government guide and the actual yes/no vote. He prepared a report, based on the underlying data provided in the survey. This was divided into three parts. The first explained the application of the concept of “logistic regression” as a means of calculating the affect of various factors on a consequence; the second part explained the methodology used in his analysis; the third presented results and conclusions. The judge explained the methodology in this way at par. 107:
51. Professor Marsh did not disagree that a figure of 9.3% could be obtained from the un-weighted data presented. However, he carried out a similar statistical analysis, this time using a number of weightings, from the underlying raw data supplied by the pollsters in their working papers. He concluded that those who said that they received the government guide were statistically more represented, as having voted yes, than those who did not, but, on his calculation, the clear difference between the two was approximately 5.5%, as against 9.3%. Dr. Bruter accepted that one could apply weighted data to the calculation. 52. Professor Marsh, whose discipline is also voter behaviour, gave evidence on behalf of the State. He outlined the difficulties, recognised in the discipline of political science, in attempting to determine what influenced voters to exercise their franchise in a particular way. In his view, the absence of a properly designed study, implemented at the time of the campaign itself, rendered it impossible, post hoc, to assess definitively what factors determined the outcome; or to decide whether any discrete individual factors, such as the material published by the Department of Children, had an affect on the level of the “yes” or “no” vote. 53. At paragraph 102 of his judgment, the judge commented that the results indicated that 62% of those polled, who said they received the Referendum Commission Guide (total 921), voted “yes”, and 38% “no”; 64% of those who received the government guide (668) voted “yes” and 36% “no”; and 65% of those who received both guides (636) voted “yes” and 35% “no”; while 64% of those who received neither guide voted “yes” and 36% “no”. These results could suggest that there was, in fact, no difference in effect between people who received the government guide and those who did not. Dr. Bruter’s conclusion suggested “a statistically significant relationship between saying you received the Government Booklet and saying that you voted yes in the Referendum”. It is also clear that the respondents tended to exaggerate the ‘yes’ vote which was only 58%. The Judge Prefers Professor Marsh’s Evidence to that of Dr. Bruter The Judge’s Conclusions 56. The judge found “this analysis did not address the other influential factors identified as important by Prof. Marsh to the understanding of the casting of votes in the Referendum. Of course, this was largely due to the fact that the data in respect of these important factors does not exist as acknowledged by Dr. Bruter and Prof. Whiteley” (the expert, a witness referred to below). The judge expressed serious reservations as to the extent to which the exercise in which Dr. Bruter engaged could be relied on as producing probative evidence. 57. It was clear from the trial judge’s extremely detailed and comprehensive analysis that he closely followed the complex testimony. But he observed a series of weaknesses in the methodology. To take one, that Dr. Bruter included in the regression process a number of individual sources of “campaigning” influences. These included figures concerning the influence of variables such as communications seen, read or heard during the campaign, broken down into television advertising, television coverage, radio advertising, radio coverage, internet advertising and internet coverage. But the judge found on this:
58. The judge pointed out that there was a debate, among political scientists, as to whether weighting was, or was not, appropriate in multivariate analysis. 59. The trial judge concluded at par. 121:
Professor Paul Whiteley 63. Professor Whitely viewed the message carried by the government information campaign as drawing upon the emotions of the reader of the booklet. He referred here to the slogans and terminology described in the McCrystal judgments. His testimony was that the booklet did not contain any counter-arguments to the proposal. He accepted that the material would not influence those who had already made their minds up, or those who were uninterested in the issues. But, in his view, an undecided voter would attach more importance to the Department’s information than information coming from an obviously partisan group or party. Though he believed the information influenced the decision of voters, he acknowledged he could not give a precise assessment of the extent of that influence because the data was simply not available. He was, however, satisfied that biased information would help one side of the campaign, and, if one had data which measured the extent to which the people trusted their government at the time of the Referendum, and the extent to which they absorbed the material, then the extent to which it influenced the outcome would be ascertainable. However, the absence of a detailed study capable of giving a precise estimate of the extent of the influence of the general campaign did not prevent him from forming “a judgment of a rough kind about what the effects were”. He was clear, however, that it was not possible to determine the percentage affect of the booklet’s influence. He was satisfied its influence could not be proven either way. He confined himself to the view that the information may very well have been “quite influential”. He also believed that the general trend in the referendum campaign reflected trends seen in other referendums, that the “yes” campaign started out from a position of strength, but saw its support leak away during the course of the campaign. This led him to believe that a further negative trend would have continued to a somewhat greater extent had the government information campaign been neutral. The Judge’s Findings on Professor Whiteley’s Evidence
65. The judge also considered evidence adduced on behalf of the appellant by Dr. Robert Heath, Associate Professor lecturing in Advanced Advertising Theory at Bath University in the United Kingdom. The gist of this evidence was as to the likely emotional influence of government advertising materials used during the course of the referendum. He testified that emotive non-verbal communication such as body language, tone of voice and emotional behaviour that accompanies and qualifies the communication may induce a favourable response; and that emotive communication in publicity material is processed automatically, instantaneously, and regardless of how much attention is paid to the verbal communication. Having examined the government booklet and the slogans used therein (described in the judgments in McCrystal), a television advertisement, and the printed advertisements; he concluded that each of these had a significant emotional aspect, and might have had a powerful influence on voter behaviour. 66. However, against this, the State relied on the evidence of Mr. John Fanning, a person of substantial experience in advertising and an Adjunct Faculty Member at University College Dublin Michael Smurfit Graduate Business School. Mr. Fanning testified that it was notoriously difficult to determine the effect of a marketing communications campaign. His evidence was that, in order to come to a definitive assessment on the impact of the material published by the Department, specific survey data, generated before, during, and after the Referendum campaign would be required. At minimum, this would require data on the degree of knowledge which potential voters had of the issues surrounding the Referendum, the degree of exposure they had to campaign literature and advertising from the Department and other sources, including traditional media, digital media and word of mouth comment. It would also be necessary to assess attitudes to the issues involved and the likelihood of voting. Mr. Fanning’s view was that the government material had minimal affect in influencing voters. He suggested the main reason for the lack of impact of this material during the campaign was its emphasis on public information rather than persuasion. It had a very conservative tone, and was conventional in design, style and layout. The fact that it included some phrases and images, the effect of which was to render it a breach of the fairness required by the McKenna principles, did not mean it was effective in terms of persuading voters to vote, and to vote yes. The Judge’s Findings The Website Post-Ruling Conduct 70. The appellant’s case, therefore, was that, because no legislation was enacted to postpone the polling day, “no” campaigners were deprived of a right to participate in a constitutionally compliant referendum process. 71. Dr. Bruter and Professor Whitely gave their views as to the likely benefits to the referendum process of postponement of the poll following the Supreme Court ruling. Dr. Bruter suggested that the referendum should have been delayed by a few days or three weeks. He later agreed with Professor Whitely that a delay of two weeks between the ruling and the polling day would have been sufficient in order to stabilise the electorate. 72. Against this, Professor Marsh considered that the negative message of the Supreme Court ruling to some extent cancelled whatever positive effect, if any, might have been gained by the government material. Over 61% of all adults were aware of the ruling, and 39% were unaware, according to the survey. This was adjusted and recorded as to 77% of the voters within the survey. The Judge’s Findings on Post-Ruling Conduct 74. The judge was not satisfied on the evidence that any Minister “showed disrespect” for, or sought to obfuscate the effect of the Supreme Court ruling. He viewed the materials and listened to the recordings produced to the court in respect of all of these. There was “robust” engagement between at least one of the interviewers and the Minister for Justice, Equality and Defence on the effect of the ruling on RTE News. He concluded that those people listening to the exchanges, or reading the newspaper reports of the ruling, could have been in no doubt as to the nature of the Supreme Court ruling. 75. The judge considered that the Supreme Court ruling in McCrystal had an immediate impact. He described it as short, focused and definitive, as a condemnation of the expenditure of public funds by the government on a partisan information campaign as a breach of the Constitution, and was reported as such. Having viewed the material, he was satisfied that the Minister for Children had demonstrated respect for the Supreme Court judgment in its criticism of the unconstitutional expenditure of public funds, and her understanding that the government would fully comply with the judgment of this Court. He commented that, on the same date, the Minister informed the Seanad of the government’s intention to act on the ruling, and to cease distribution and publication of the impugned materials. On the 8th November, the material on the website was edited by reference to the Supreme Court ruling. It was taken offline completely on the morning of 9th November. The Department cancelled advertisements scheduled to appear in five national daily, and one local newspaper, on 9th November, as well as proposed publication in another free sheet newspaper. So too were radio and television advertisements scheduled to be broadcast on the 8th, 9th and 10th November. On the 8th November, the Department also issued a notice to public bodies, including libraries, citizen information centres and family resource centres, requesting that copies of the criticised booklet be removed from public display. The Trial Judge’s Conclusions 77. Finally, the judge expressed reservations as to the appellant’s contention that the government should have sponsored emergency legislation to ensure the postponement of the referendum. He commented that apart from the fact that the petitioner never sought any such pre-referendum relief, he doubted whether the jurisdiction of the court extended to a review of a government’s failure to introduce emergency legislation in order to postpone a Referendum (see Fitzgibbon v. Ireland, Unreported, Supreme Court, 8th June, 2001, where the Supreme Court refused an application to restrain the holding of three referendums; where Keane C.J. thought 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”) (see also Slattery v. An Taoiseach [1993] 1 I.R. 286). Conclusion on a Survey of the Evidence 79. If, moreover, the Act of 1994 accords with the relevant provisions of the Constitution, then it follows that neither the petition nor the constitutional challenge can succeed. The Constitutional Values Engaged 81. Under the heading “Amendment of the Constitution”, Article 46 provides that any provision of the Constitution may be amended by way of variation, addition or repeal in a manner provided for in that Article (Article 46.1). A Bill, having been introduced into the Oireachtas, and then passed, or deemed to have been passed, by both Houses, is submitted by referendum to the decision of the People in accordance with, as Article 46.2 puts it, the law, “for the time being in force”, relating to the “Referendum”. This constitutional provision, therefore, allows for, and requires, a legal framework to be outlined in law for the amendment of the Constitution. 82. Articles 46.3 and 4 deal with the format and content of the Bill to be placed before the Oireachtas, and are not material to the appeal. The provisions prevent implicit amendment of the Constitution by statute. However, Article 46.5 provides that:
84. Article 47.1 provides:
85. Article 47.3 deals with the right of citizens to vote at a Referendum. Although not directly material to these appeals, it emphasises, in terms, the right of “citizens”, as part of their democratic right of participation in a sovereign State, to engage in the most fundamental legislative process of all, that is, the framing or amending of the Constitution. The right of citizens to vote in a Referendum, therefore, and the importance to be attached to the expression of that right of citizenship, is part of the essential character of the State itself. 86. Article 47.4 of the Constitution provides:
87. The framework of reference, identified in the Constitution, does not simply set boundaries to interpretation; but rather, to my mind, flows into each statutory provision in the Act of 1994 addressing referendums, including, specifically, those the constitutionality of which is challenged in this appeal. The statute in question must be interpreted in a manner consistent with, both the spirit and letter, of Articles 46 and 47 of the Constitution itself. 88. The process of interpretation here will, of course, be guided by the actual language of the text of the Constitution, but rejecting excessive literalism. As both a political and legal charter of rights, the text of the Constitution may be interpreted in a broad and purposive manner. The Court is not engaged here in a process of statutory interpretation, such as might obtain in a Revenue statute. What is in question, rather, is the interpretation of an Act, passed by the Oireachtas, which itself is intended to embody and apply constitutional values in the very fundamental area of how the Constitution itself is to be amended. 89. While clearly there is a balance of rights and duties, at one level, it may be said that the appeals herein also involve the resolution of rights, that is, an individual right of the appellant, as contrasted to the “rights of the respondents”. That, however, is simplistic. The issue is considerably more nuanced. What is under discussion is a series of constitutional values of paramount importance, including the right of all citizens in voting at a Referendum. There is a respect due to the constitutionally identified “approval of the majority” of the people. In the hierarchy of constitutional values engaged in this case, that which ranks higher must be given due recognition. As the Preamble provides, ‘All powers, under the Constitution’ are to be exercised to promote the common good. Provided the referendum is conducted in accordance with the law, the decision on the priority of constitutional rights which is to be applied insofar as a conflict arises, is to be resolved by having regard to the terms of the Constitution itself, the political and ethical values contained in it, acknowledged by citizens of the State, and the main tenets of our system of constitutional parliamentary democracy (see judgments of Kenny J.; and Griffin J. in The People v. Shaw [1982] I.R. 1). 90. On its face, the vote which took place on the Children Referendum on the 10th November, 2012 was an expression of the will of the sovereign people of Ireland. The proposal, which was placed before the people, met with the approval of the people by a margin, by any standards considerable, of 58% to 42%, a total of some 180,000 people. This margin bears comparison with the narrow margin shown in the divorce referendum outlined in Hanafin, where the proposal put before the people was carried by a margin of just over 9,000 votes. We are not here dealing with a narrow margin. 91. In Hanafin the judgments lay emphasis on the proposition that great constitutional weight must be imparted to the will of the people. A democracy is constituted in the rule of the people by the people. Their will, as expressed by the Constitution of 1937, identifies the very framework and nature of the State, as well as identifying a series of fundamental rights and duties. Opitz v. Wrzesnewskyj 93. Both the majority and minority opinions of that court placed central emphasis on the popular franchise, and the right to vote, as identified in the Canadian Charter of Rights. This was a “core constitutional value” in Canadian democracy. Accordingly, this consideration lay at the heart of how the electoral law in question was to be interpreted and applied. The majority judges (Rothstein and Moldaver JJ.) specifically pointed out that in the event that electoral legislation is found to be ambiguous, it should be interpreted in a way that is “enfranchising”. The judgment lays emphasis on the proposition that annulling an election would disenfranchise not only persons whose votes were disqualified, but every elector who voted; election administration is not designed to achieve perfection, but rather to come as close to the ideal of enfranchising all entitled voters as possible; the courts cannot demand perfect certainty, and rather must be concerned with the integrity of the electoral process. The majority pointed out at par. 50:
94. I would agree with this approach to constitutionally based and framed legislation, which places a priority on substance over form, and which favours the right to vote and enfranchisement. Chief Justice McLachlin, in the minority, observed that election results benefit from a “presumption of regularity”, reflecting the fact an applicant bears the burden of establishing, on the balance of probabilities, that there were irregularities that affected the result of the election. She pointed out that election results should not be easily overturned. Dillon-Leetch v. Calleary & Ors 96. I have already expressed agreement with O’Donnell J.’s observations regarding the application of a series of English and pre-independent statutes relied on by the appellant, and my endorsement of them. I would, however, wish to lay emphasis on passages from Henchy J.’s judgment in Dillon-Leetch v. Calleary & Ors, (Unreported, Supreme Court 1973, No. 64, 25th July 1973), which so clearly express the principles which should apply as requiring more ample consideration. The appellant submits the passage which follows is obiter, relying on reasoning fully set out in O’Donnell J.’s judgment. It is said the observations are not material. Whether the passage is obiter or not it represents, to my mind, precisely the proper approach to interpretation of statutes of this Charter. The observations made apply a fortiori to the post-1937 Constitution Referendum Act, 1994 which enjoys a presumption of constitutionality. 97. The petitioner, Mr. Dillon-Leetch, brought his proceedings under the Electoral Act, 1923, seeking to invalidate the election result in the constituency of East Mayo in the 1973 General Election. The petitioner had been unsuccessful in the constituency. His petition was dismissed in the High Court. It was contended before this Court (Budd J., Henchy J., Griffin J.) that there had been a number of irregularities in the count, including a failure to seal the ballot box at various stages during the count, thereby impinging on the secrecy of the ballot. 98. Having referred to the findings of the Divisional High Court that there had been no such actual interference, and that the boxes had been kept under supervision at all times by members of An Garda Siochana, Henchy J. speaking on behalf of this Court, expressed himself this way in addressing the ‘principles’ to be observed:
100. To a large degree, the appellant’s submissions hinged on seeking to interpret the provisions of the Act of 1994 in a manner which is at variance with the principles just identified. A “literalist”, “formalist”, mode of interpretation is not generally appropriate in applying constitutional principles of this type to a statute addressing referendums. It is true that there are divergences in the terminology used by the drafters of the Act between ss. 42, 43, 48 and 57. They are considered in other judgments. It is said the term “result of a referendum” is used in s.48, whereas the result of a referendum as a whole is to be found in the first. This is true. But the terminology, insofar as it is divergent (although not significantly so), is not a justification for adopting an interpretative approach where the law is interpreted to fit the evidence, when, obviously, the converse must be the case. To succeed, the evidence must surpass the legal thresholds, which are, in fact, quite clear; either the requirements laid down by the statute are satisfied, or the appeal must fail, absent a finding of unconstitutionality of the Act of 1994. I turn next, and more briefly, to a consideration of some passages in Hanafin. Stare Decisis 102. In fact, as will be seen here, and in the other judgments herein, for the appellant to succeed, this Court would have to be persuaded that significant elements of Hanafin were incorrect. Implicit in the appellant’s case also is the need to depart from the observations made by O’Donnell J. in McCrystal, decided in 2012, as to the “different standard” applicable, seeking to annul a referendum result, as opposed to halting unconstitutional conduct prior to the vote. 103. The judge is criticised consistently, but inaccurately, for his use of terms such as “clear and cogent” to describe the evidence. There is a significant distinction between, on the one hand, a ‘standard of proof’, and on the other, the evidence which is necessary in order to reach that standard. It is by no means uncommon in other areas of the civil law that courts require “clear and cogent” evidence to establish matters to a degree of probability, especially when there is a duty on a court to identify what may be viewed by analogy as the causa causans and ‘effect’. Onus of Proof and Standard of Proof
(1) the nature and extent of the obstruction of or interference with or other hindrance or mistake or other irregularity (hereinafter referred to in the circumstances of this case as "constitutional wrongdoing"), and (2) that such "constitutional wrongdoing" materially affected the result of the Referendum as a whole.”
(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.”
Sections 42, 43 and 48, sub-s. 2 of the Act of 1994 refer to this requirement. Under s. 42, sub-s. 3 of the Act, the High Court shall not grant leave for the presentation of a referendum petition unless it is satisfied that the matters complained of are such "as to affect materially the result of the referendum as a whole". Under s. 43, sub-s. 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 one or all of the matters set forth at (a), (b), (c) and (d) of the sub-section. Section 48, sub-s. 2 provides that:- "The court shall not order a referendum to be taken again in any constituency … where it appears to the court that … the non-compliance did not affect the result of the referendum as a whole." From a consideration of these sub-sections 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.” (emphasis added)
The application will usually be ex parte and no doubt affidavit evidence will be sufficient to establish prima facie evidence at this stage of the proceedings. When, however, it comes to the trial of the referendum petition the petitioner will have to produce his witnesses. 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 (See In re Article 26 and the School Attendance Bill, 1942 [1943] I.R. 334). Likewise this Court will not lightly set aside what appears, prima facie, to be an 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.” (emphasis added) 107. I am unable to accept the proposition that the logic of Hanafin is that a petitioner’s case is unprovable, or that the evidence crossed the test threshold set out in O’Donnell J.’s judgment. To these I would add just a number of brief observations. The Leave Threshold 109. Furthermore, there is an irony which arises from the argument advanced by counsel for the appellant. It is suggested that, once a prima facie case is established, this should thenceforth be taken as effectively a “given”, and that the onus of proof should thereafter devolve upon the State to rebut the appellant’s case. But an application for leave may be made ex parte. Even if on notice, not all the evidence will be available. Such an interpretation would not be in accordance with the principles of fair procedures. It would run counter to the terms of the Act as outlined in s.43, which deals with the level of proof and content of proof necessary for a leave application; and to the provisions of Articles 46 and 47 of the Constitution, outlining the status which the courts must give to the approval of the People. A procedure of the type suggested, tantamount to a form of procedural ‘ratchet’, would itself be at variance with the constitutionally based principle of audi alteram partem. 110. It is suggested that there is support for the concept of a low threshold for leave in the judgment of Barrington J. in Hanafin. In Hanafin, Barrington J. stated at p.456:
112. There is, too, further irony in the appellant’s position. The appellant herein was actually granted leave. Can it then be said that she can legitimately complain about the leave threshold, albeit in the context of a telescoped hearing. In my view, the appellant is seeking here to invoke jus tertii, a course of action deprecated by Henchy J. in Cahill v. Sutton [1985] I.R. 269. 113. It is said also that the learned trial judge’s approach failed to respect the distinction drawn in the language of the Act of 1994 between an application for leave to present a petition and the trial of the petition itself. The proof required in s.42(1)(b) regarding the leave application is that the High Court should be satisfied that the said matter is such as to “affect materially the result of the referendum as a whole”. It is argued that this suggests that the evidence must demonstrate a “potential” that the result of the referendum was affected. But this is not what the sub-section says. What is required is that the matter disclosed is such as to “affect materially” the result of the referendum “as a whole”. While it is evident that this language is derived from the consideration that referendum counts take place on a constituency by constituency basis, it is, nonetheless, a significant threshold, closer to the requirement disclosed in the planning statutes, requiring “substantial grounds”. I do not accept, therefore, that there is a significant contrast in language between the terms of s.42(1)(b) and s.43(1), requiring that at the trial it be shown “the result of the referendum as a whole was affected materially by the impugned matter”. It is said that s.43 requires “actuality”. I agree with the latter submission, which is consistent with the provisions of Articles 46 and 47 of the Constitution, and the respect due to the will of the people. 114. Linked with this submission is a further point. The appellant says that the trial judge drew an “irrational” distinction between the standard applicable at the leave and trial stage. It is said that having adopted an unduly high standard of proof at the leave stage, akin to that implied in s.43(1), and having accepted that the appellant had overcome the high threshold of demonstrating a fair, serious and bona fide issue, he ought to have concluded that the appellant had also met the lawful standard applicable to the trial of the Petition. In the course of argument, this submission acquired greater significance, in that, counsel for the appellant sought to argue that, accepting that the leave threshold was “high”, once that threshold was passed the burden of proof fell upon the respondents. 115. One hypothetical situation demonstrates the fallacy of this submission. It is suggested that there should be a “lower” threshold. But this threshold might actually be passed on an ex parte leave application, where a respondent has no right to be heard. But such a course of action could not be in accordance with the principle of fair procedures, still less the provisions of the two referendum Articles in the Constitution. The Standard of Proof Applied Reverse Onus of Proof? 118. However, it is important to emphasise that Henchy J. then went on to state that mere difficulty of proof is insufficient:
120. In my view the learned trial judge correctly identified the necessity for “authoritative”, “clear” and “cogent” evidence. As Henchy J. pointed out in Hanafin, many cases arise in the law of tort, and elsewhere, where it is necessary to segregate the probative evidence so as to clearly demonstrate cause and effect, or in this case, cause and material effect. What was lacking in this case was sufficient probative evidence. That is not to say that such evidence is impossible to obtain. 121. The material published was in breach of the McKenna principles. However, it was obviously necessary to have regard to the entire scenario, background and debate in order to determine whether or not unconstitutional activities had the affect contended for. The application of this standard was no more than that required in a civil action. Were it to be the case that the campaign breaches alone, as identified in McCrystal, as distinct from the electronic media, social media, the views of peers and lawful political activity, not to mention the entire political background, had materially affected the result of a referendum, then a petitioner would undoubtedly have a stronger case. The burden imposed, by the statute, even bearing in mind the presumption of constitutionality in Article 47, is not insurmountable. 122. There is no warrant to be found in any relevant section of the Referendum Act, 1994 for reverse burden of proof. A fortiori, imparting a constitutional interpretation to each section, no such warrant is discernable, nor can it be “read in” to the Act. To do so would be to invert the constitutional values which are engaged here. Moreover, this must be seen in the context of a situation where this Court in McCrystal has already, in protection of the McKenna principles, granted a declaration. The remedy which the appellant seeks is that the outcome of the referendum be annulled. It is difficult to avoid the conclusion that the interpretation which is sought is dictated by the remedy which is urged, in light of insufficient evidence. An Inquiry Process? Post-Ruling Conduct The Constituency Requirement Conclusion | ||||||||||||||||||||||||||||||||||||||||||||||||