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Judgment
Title:
In the Matter of the Referendum on the Proposal for the Amendment to the Constitution contained in The Thirty First Amendment to the Constitiution (Children) Bill 2012
Neutral Citation:
[2013] IEHC 458
High Court Record Number:
2012 152 IA
Date of Delivery:
10/18/2013
Court:
High Court
Judgment by:
McDermott J.
Status:
Approved

Neutral Citation Number: [2013] IEHC 458

PETITION

THE HIGH COURT

[2012 No. 152 IA]

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 2012, HELD ON 10TH NOVEMBER, 2012

JOANNA JORDAN

INTENDED PETITIONER

JUDGMENT of Mr. Justice McDermott delivered on the 18th day of October, 2013

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.

2. The Referendum Returning Officer published a provisional Referendum Certificate in Iris Oifigiúil dated 12th November, 2012, on 13th November which confirmed the final results of the Referendum. This certificate was prepared from the reports submitted by the several local Returning Officers in all of the constituencies in the State which 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.”

The result indicates that 33.49% of the eligible electorate voted, 58% of those who voted, voted in favour of the proposed amendment and 42% voted against.

Amending the Constitution
3. Article 46(2) of the Constitution provides that:-

      “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.”
Article 46.5 provides:-
      “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 s. 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.”
4. The result of any Referendum is determined in accordance with Article 47.1 of the Constitution which provides that:-
      “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.”
Article 47.3 provides that:-
      “Every person who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum.”
Article 47.4 provides that:-
      “Subject as aforesaid, the Referendum shall be regulated by law.”

Referendum Act 1994
5. The law regulating the holding of a Referendum is set out in the Referendum Act 1994.

6. Voting in the Referendum is by secret ballot and s. 8 of the Act provides that:-

      “A person who has voted at a Referendum shall not in any legal proceedings be required to state how he voted.”
Other provisions of the statute are calculated to preserve the secrecy of the ballot.

7. On 18th September, 2012, the Taoiseach announced in Dáil Éireann that voting on the Children Referendum would take place on 10th November, 2012. The Bill completed its passage through both Houses of the Oireachtas without amendment on 3rd October. On 8th October, the Minister for the Environment, Community and Local Government made an order pursuant to s. 10(1) of the Act nominating 10th November, 2012, as the polling day.

8. Under s. 14 of the Act, the Minister appointed a “Referendum Returning Officer” whose duty it was to conduct the Referendum and to ascertain and declare the result thereof in accordance with the Act. Under s. 15 a person who would normally be the Returning Officer at a Dáil election in a constituency is empowered to act as “the Local Returning Officer” in that constituency for the purposes of the Referendum. It is the duty of the Local Returning Officer to do “such acts and things as may be necessary for effectually taking the poll and counting the votes in the constituency in accordance with this Act”. Section 18 provides that for the purpose of taking the poll the State shall be deemed to be divided into the same constituencies as those applicable to an election to Dáil Éireann and that “the poll shall be taken separately in each such constituency”. Section 37 provides that:-

      “On completion of the counting of votes in a constituency, the local Returning Officer shall furnish to the Referendum Returning Officer a report in writing (under section 34) in the form directed by the Minister stating:-

        (a) The number of valid votes recorded in favour of the proposal which is the subject of the Referendum,

        (b) The number of valid votes recorded against that proposal, and

        (c) The total number of valid votes recorded at the Referendum in the constituency,”

together with a statement pursuant to s. 34(3) of the Act showing the number of papers rejected as invalid and not counted under s. 34(1)(a) to (d).

9. Under s. 40, the Referendum Returning Officer, as soon as he/she has received the s. 34 reports recording the number of votes recorded in each constituency must prepare and sign the provisional certificate in the prescribed form from these reports stating:-

      “(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;

      (c) In every case the number of votes reported by the Local Returning Officer to have been recorded in each constituency in favour of the proposal which is the subject of the Referendum and the number of votes similarly reported to have been recorded in each constituency against the proposal.”

10. Thereafter, under s. 40(2) the Referendum Returning Officer is obliged “as soon as maybe after signing the provisional Referendum Certificate” to publish a copy of the certificate in Iris Oifigiúil together with a statement that such certificate 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. Each of these steps was lawfully completed by the Local Returning Officers and the Referendum Returning officer and no issue arises in these proceedings concerning the conduct of the poll which was in all material respects, carried out in accordance with the provisions of the Referendum Act 1994.

11. In these proceedings Ms. Jordan (hereinafter the petitioner) seeks leave to present a petition pursuant to s. 42 of the Referendum Act 1994, in respect of the provisional Referendum Certificate dated 12th November, 2012, for an order annulling the Referendum result. The proposed respondents are the Minister for Children and Youth Affairs, the Government of Ireland, Ireland and the Attorney General (the respondents). The application is based on the ruling of the Supreme Court in McCrystal v. Minister for Children and Youth Affairs & Ors [2012] IESC 53 delivered on 8th November, 2012, and the several judgments of the court delivered on 11th December. It was established in McCrystal that the 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.

McCrystal Litigation
12. On 19th September, 2012, a Referendum Commission was established under the Referendum Act 1998, as amended, to provide neutral information to the electorate on the proposed amendment. The Referendum Commission launched a public information campaign on 16th October, 2012. It established a website, conducted an advertising campaign and also produced and distributed an information booklet on the Referendum proposal to be sent to every home in the State. The parties to the proceedings accept that the Referendum Commission was at all material times acting in accordance with its statutory mandate in an impartial and objective manner.

13. On 19th October, 2012, the Minister for Children and Youth Affairs also commenced an information campaign. The Minister caused a website to be launched, 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.

14. Mr. McCrystal was concerned that the Government’s information campaign constituted a clear disregard of the principles established in McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10 (the McKenna case), which determined that the Government may not spend public monies to promote a result in a Referendum.

15. In McKenna (No.2), Hamilton C.J. in his judgment stated that the Referendum Act 1994, in accordance with which every proposal for constitutional amendment must be put to the people, did not allocate any role to the Government in furnishing information to the electorate or in the conduct of the Referendum. The Government in spending public funds on the promotion of a campaign in favour of a “Yes” vote was not acting in accordance with the executive power of the State. Though the Government was entitled to express its views and urge acceptance of the proposal, the issue was whether the expenditure of public funds to that end constituted an interference with the plaintiff’s constitutional rights. Hamilton C.J. was satisfied that:-

      “The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.” (p. 42)
16. O’Flaherty J. (concurring) stated that:-
      “To spend money in this way breaches the equality rights of the citizen enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizen (those in favour of the change) above those of another class of citizen (those against)…

      I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy; it has elements of a plebiciary democracy) it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather that the other.” (p. 43)

17. Blayney J. held that the Government’s expenditure constituted a breach of fair procedures which must be observed in submitting a proposal to the people. He stated that if the Government’s plan to spend over £400,000.00 were to be implemented:-
      “…it would give a very considerable advantage to those who support the amendment as against those who oppose it. The Government would be acting unfairly in the manner in which it was submitting the amendment to the decision of the People.” (p. 50)
18. Denham J. (as she then was) in her concurring opinion, 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 Article 16.2.3 and Article 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.” (p. 53)
Further, Denham J. emphasised that a citizen was entitled, as a personal right, to a democratic process pursuant to the provisions of Article 40.3 of the Constitution:-
      “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)

19. A test was formulated in the McKenna case as to how 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)

20. The Supreme Court concluded that the government funding of the 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.

21. Mr. McCrystal initiated his proceedings, by way of ex parte application to the High Court on 19th October, 2012, in respect of the expenditure of public funds by the Minister for Children and Youth Affairs and the Government in the course of the Children Referendum Campaign based squarely on the McKenna case. He challenged the expenditure of public money on a government information booklet, advertising on radio and television and in printed media, and the creation and maintenance of a website favouring a “Yes” vote in the Referendum. He complained that the Minister had commissioned 2.05m copies of an “information booklet”, the delivery of which to all homes in the State commenced on 19th October, 2012. In the course of Mr. McCrystal’s proceedings, evidence was adduced that the department allocated a budget of €3m to be spent on the Children Referendum. €1.9m was allocated to the Referendum Commission to finance the discharge of its statutory duties. The balance of €1.1m was to be used by the Department of Children and Youth Affairs: “to provide information on the Referendum and encourage members of the public to vote”. Details were provided to this Court of this expenditure as follows:-
“Development, design and operation of the website
11,040.00
Design and printing of information
235,759.37
Behaviour and Attitudes opinion poll
103,011.98
MKC Communications – website and booklet development
38,499.65
Broadcast, media production and advertising
164,725.29
Delivery of information booklets
225,027.01
Print media advertising (Brindley Advertising)
247,515.95
Dr Geoffrey Shannon (Advice on Adoption)
8,237.19
Press Office Costs (e.g. transcripts)
7,410.67
Sundries
1,056.88
Total expenditure
1,042,284.10”

This expenditure enabled the government to disseminate the impugned material nationwide and was a large amount compared with the sums spent by others, such as Fine Gael €150,000.00 and the Labour Party €50,000.00. The “no” campaign had very little funding available to it.

22. Affidavits were submitted to the High Court on behalf of Mr. McCrystal supporting his contention that the materials produced by the Government tended to promote a “Yes” vote. He sought a declaration that the defendants 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.

23. The High Court (Kearns P.) in an ex tempore judgment delivered on 1st November, 2012 [2012] IEHC 101, and having considered an extensive body of expert and other evidence submitted on affidavit, was not satisfied to conclude that the material constituted “a clear constitutional abuse or manifest solicitation to vote in a particular way”.

24. The plaintiff appealed to the Supreme Court which commenced the hearing of the appeal on 6th November, 2012, and on 8th November granted a declaration that the various publications including the booklet, the advertising and the material on the website “in places” breached the principles set out in the McKenna case. An injunction was not granted because it was assumed by the court that the Minister and the Government would respect the Supreme Court’s ruling and cease its unconstitutional behaviour. The Supreme Court delivered its decision promptly as the Referendum was due to be held on the following Saturday, 10th November. The court indicated that the judgments would be delivered on 11th December, 2012. The Supreme Court ruling was extensively and immediately reported in the national media and became a source of intense political debate, understandably attracting significant criticism from the “No” campaign and others. It is important to quote the relevant part of the ruling delivered on 8th November because of the claims made by both sides as to its affect or potential affect on the Referendum campaign and on votes cast on polling day two days later.

25. Denham C.J. in delivering the ruling of the court stated:-

      “3. In McKenna v. An Taoiseach… it was held that the Government in expending public moneys in the promotion of a particular result in a Referendum process was in breach of the Constitution.

      The people adopted the Constitution 75 years ago. The Constitution belongs to the people and may be amended only by the people in a Referendum. It is this democratic process which is protected by the McKenna principles. Public funding should not be used in a Referendum to espouse a particular point of view.

      4. The McKenna principles may be found in the several judgments in that case. These principles, which are not in dispute, are consistent with standards recognised both nationally and internationally for a Referendum process, such as the European Commission for Democracy Through Law (Venice Commission), Code for Good Practice on Referendums, adopted by the Council for Democratic Elections at its 19th Meeting (Venice, 16 December, 2006) and the Venice Commission at its 70th Plenary Session (Venice, 16 – 17 March, 2007).

      5. At issue in this case is the application of these principles to a booklet and a website, both entitled ‘Children’s Referendum’, and advertisements, published and disseminated by the Department of Children and Youth Affairs, on foot of moneys voted by the Oireachtas, which the appellant submits breach the McKenna principles.

      6. The Court is required to give its decision promptly, in view of the pending Referendum to be held on Saturday, 10th November, 2012. The substance of that proposal is a matter for the people alone. The Court will give its ruling today and judgements will be delivered on Tuesday, 11th December, 2012.

      7. The Court has concluded that it is clear that there are extensive passages in the booklet and on the website which do not conform to the McKenna principles. This material includes a misstatement, now admitted to be such, as to the effect of the Referendum.

      8. The Court is satisfied that while not all of the website or the booklet are in breach of the McKenna principles, because of the overall structure of the booklet and website, it would not be appropriate for the Court to redact either.

      9. Accordingly, the Court would grant a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys 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. The Court does not consider it either appropriate or necessary to grant an injunction, as it is to be assumed that the respondents will cease distributing and publishing the material.”

26. As the Supreme Court later noted, the appellant did not seek an order restraining the holding of the Referendum itself.

27. The judgments of the Supreme Court when delivered on 11th December, 2012, contained detailed consideration of the contents of the Government Booklet that had been distributed throughout the State, the website operated by the Minister and the advertising campaign. The various judgments set out detailed reasons for the conclusion that the Minister and Government acted in “clear disregard” of the McKenna principles and highlighted by a close examination of its contents why the Government’s “information” campaign was found to be partial and to favour a “Yes” vote. Of course, that forensic examination of the material was not available to the electorate prior to polling day which the petitioner in this case claims to be a matter of some importance. Whilst it was and remains permissible for the Minister and the Government to spend public money on the dissemination of information, it was not permissible for them to favour a particular outcome or, under the guise of an information campaign to depart from a path of “strict neutrality”.

28. It is clear from the McKenna and McCrystal decisions that if a citizen establishes to the court’s satisfaction on the balance of probabilities that the Minister and/or the Government acted in clear disregard of the constitutional rights of the citizen to a democratic process incorporating the right to equality, fair procedures and freedom of expression, the citizen may apply for and secure judicial intervention in order to protect and vindicate those rights. The Supreme Court judgments recognise the vulnerability of the democratic process and the exercise of those constitutional rights which underpin its strength, integrity and effectiveness, to significant damage if the executive is permitted to spend public money in advancing a “Yes” vote in the course of a Referendum campaign. These proceedings are concerned with the effect, if any, of that unconstitutional behaviour on the poll held on 10th November, 2012, and whether it was such as to “materially affect” the result of the Referendum “as a whole”.

The Claim
29. The petitioner’s claim for an order that the provisional Referendum Certificate be annulled is based on the grounds set out at para. 4 of the petition as follows:-

      “(1) It is a requirement of the Constitution of Ireland (The Constitution) 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.”

30. The petitioner contends that the nature and extent of the breaches of the Constitution in the conduct of an “information” campaign by the Minister and the Government had a “material affect” on the outcome of the Referendum poll. The Supreme Court has determined that the information booklet, the website and the advertising campaign were publicly funded and favoured the “Yes” side. The right of citizens to equality was breached in that one class of voters was favoured over another. Public funds were used to advance a point of view on the proposals which was anathema to citizens who had paid their taxes and contributed thereby to the Government spending. The right to fair procedures was breached in that the scales must be held equally between the “Yes” and “No” sides. In that regard, the petitioner focused on the particular findings in the judgments of the Supreme Court in McCrystal and submitted that the breaches were so egregious and serious in themselves that it was likely that they had an impact on the electorate and materially affected the outcome of the Referendum. The court was invited to consider the language, adopted in the material calculated to encourage an emotional impact and a “Yes” vote and the expenditure of a large amount of money on the campaign as evidence supporting that proposition. It was submitted that the Government booklet contained an admitted but important error, which of itself, contributed to this “material affect” and was compounded because the booklet was never withdrawn and the misstatement was not brought to the attention of the public (though the error was removed from the Government website on 7th November, 2012).

31. The petitioner also relied upon expert evidence to support the proposition that an independent poll carried out after the vote on behalf of the Referendum Commission provided significant evidence that the information campaign had a “material affect” on the Referendum poll result.

32. In addition the petitioner claimed that there was no basis to conclude that the ruling of the Supreme Court on the 8th November, 2012, had any mitigating influence on the effect otherwise caused by the Government information campaign and indeed, that the various Government members who commented upon this ruling tended to undermine its importance and potential affect. The petitioner also contended that the post Supreme Court ruling behaviour of the respondents exacerbated the affect of the unconstitutional conduct, thereby further interfering with the conduct of the Referendum and the democratic process and that it had a further material affect on the Referendum result.

The Respondents’ Case
33. The respondents contended that a finding that aspects of the information campaign in McCrystal were at variance with the McKenna principles does not mean that the court must set aside the result of the Referendum. Emphasis was placed on the significant margin by which the Referendum was carried, and the number of significant polls in advance of the Referendum which indicated a large majority in favour of the type of and the actual proposal carried since 2011. It was submitted that apart from the information furnished in the impugned Government campaign there was a significant public campaign conducted in which all of the main political parties and every member of the Dáil and Seanad save one, supported the Referendum proposal and there was considerable debate in all media outlets on the issues raised by the proposal. It was also submitted that significant elements of the information campaign were ineffective and that polling data suggested that it did not have an appreciable affect. Experts on both sides contended that the particular factors that determined the outcome of the poll were difficult if not impossible to assess in the absence of a properly designed survey, which would have been very difficult to organise. The respondents contended that the post poll survey relied upon by the petitioner did not establish that the information campaign had a material affect on the outcome.

34. The respondents relied upon the McCrystal Supreme Court ruling on the 8th November, 2012, as a factor which had a negative impact against the Government and was widely disseminated through the various organs of the media to the benefit of the “No” campaign.

Leave to Present a Petition
35. The first issue to be determined is whether leave should be granted to present the petition. Section 42 of the Referendum Act 1994, provides that:-

      “(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 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.


      (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.”
36. The application for leave to present a petition was made to the High Court on 19th November, 2012, but was adjourned from time to time pursuant to O. 97, r. 3(4) of the Rules of the Superior Courts to enable the proposed respondents to be put on notice of the application, and to await the delivery and consideration of the judgments of the Supreme Court on 11th December. A plenary summons was issued on the same date seeking declaratory and other reliefs including declarations that certain provisions of the Referendum Act 1994, were invalid in that they were repugnant to the provisions of the Constitution. The petitioner reserves her right to pursue those proceedings following the decision in this case, in which the annulment of the provisional Certificate is sought.

37. It was submitted on behalf of Ms. Jordan that the section provides a low threshold for the granting of leave. Reliance was placed upon the judgment of Barrington J. in Hanafin v. Minister for the Environment [1996] 2 I.R. 321, in which a petition was brought in respect of the result of the Divorce Referendum (a proposal contained in the Fifteenth Amendment of the Constitution Bill (No.2) 1995) following the determination in the McKenna case that the Government was in breach of the Constitution in the conduct of an information campaign conducted in the lead up to that Referendum poll. Leave was granted by McCracken J. in the High Court to present the petition on 7th December, 1995. No issue arose concerning the grant of leave in the Hanafin case. However, in his judgment in the Supreme Court, Barrington J. stated at p. 456:-

      “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.”
38. The onus placed upon the petitioner seeking leave to present a petition under s. 42 differs from that required, for example, in seeking leave to apply for judicial review in which an applicant need only establish a stateable ground or arguable case. It also differs from that required under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and s. 50 of the Planning and Development Act 2000, both of which require an applicant to establish substantial grounds in order to obtain leave to apply for judicial review. Under s. 42, the applicant must satisfy the court that there is prima facie evidence of a matter referred to in s. 43 (including unconstitutional conduct by the executive) and that it “is such as to affect materially the outcome of the Referendum as a whole”. The phrase “prima facie evidence” is often used in civil proceedings when at the conclusion of the plaintiff’s evidence an application is made to dismiss the case on the basis that he/she has not made out a prima facie case. This requires the trial judge to consider whether it would be open to the decision maker, if no other evidence were adduced, or if the evidence were to be accepted, to enter a verdict for the plaintiff (see Hetherington v. Ultra Tyre Service Ltd [1993] 2 I.R. 535 and O’Toole v. Heavey [1993] 2 I.R. 544).

39. I am satisfied that in order to grant leave to present the petition in this case the court must be satisfied that there is 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. It is not necessary, at this stage, that the court be satisfied of the petitioner’s case on the balance of probabilities: that is the level of satisfaction appropriate to the trial of the petition. If leave is granted, as Barrington J. notes, the petitioner must produce her witnesses and the court must then determine whether it is satisfied to the appropriate level of proof that the petitioner has succeeded in establishing her contention and is entitled to the relief claimed. The threshold established under s. 42 provides a filtering system whereby vexatious or frivolous claims or those based on unarguable, unstateable, or insubstantial grounds or weak or inadequate evidence will be refused.

40. In this case, following the adjournment of the leave application, affidavits were exchanged including affidavits from various expert witnesses in respect of the alleged effect or non-effect of the McCrystal breaches of the Constitution on the Referendum result. It was agreed between the parties that the same evidence grounding the application for leave to present the petition would have to be considered by the court on the full hearing of the petition if leave were granted. At a preliminary hearing it was submitted that, subject to the view of the court, a telescoped hearing of the leave application together with any substantive application necessitated by any grant of leave would afford the parties full opportunity to canvas the relevant issues before the court and enable the court to deal with all such issues in an administratively efficient and fair manner. Dunne J. gave directions to that effect which I adopted when the matter came on for hearing before this Court.

41. I was satisfied, at the request of the parties, to leave the resolution of the application for leave to present the petition until all of the evidence and submissions which the parties wished to tender in relation to the issues in the case were heard. In that regard, it is clear as a matter of fact that the Supreme Court has already determined, that the Minister and the Government acted in clear disregard of the Constitution in the lead up to the Referendum poll, so that there was clear prima facie evidence of the existence of an interference with or irregularity in the conduct of the Referendum under section 43. It remains for the court to consider at the leave stage whether it is satisfied that there was also prima facie evidence that the unconstitutional conduct established “is such as to affect materially the result of the Referendum as a whole”. I will return to this issue later in the judgment when considering the evidence in the case. It is appropriate, before considering the evidence adduced to consider the onus and burden of proof applicable to the trial of a petition and the meaning of “material affect”.

The Hanafin Case and s. 43 of the Referendum Act 1994
42. The only authority that deals directly with the principles applicable to the trial of a Referendum petition in the wake of a Referendum poll in which a Minister and the Government have been found to have unconstitutionally sponsored partisan information in the course of the campaign is to be found in Hanafin v. Minister for the Environment [1996] 2 I.R. 321, in which the Supreme Court considered the scope of relief available under s. 43 of the Referendum Act 1994.

43. Section 43 sets out the grounds upon which a petitioner may question the validity of a provisional Referendum Certificate as follows:-











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