Developments in Constitutional Law A Bar Council CPD Seminar REFERENDUM LAW

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1 Developments in Constitutional Law A Bar Council CPD Seminar REFERENDUM LAW Niall F Buckley BL 15 July Introduction 2. Constraints on the Executive: Clarifying the McKenna Principles 3. The Role of the Court in Relation to Referendum Petitions 4. The Referendum Commission & Review 5. Remedies

2 Democracy is the theory that the common people know what they want, and deserve to get it good and hard. HL Mencken 1.0 INTRODUCTION The referendum on accession to the Maastricht treaty in June 1992 was just the 11 th referendum in over half a century since the adoption of the 1937 Constitution. The two decades or so since have witnessed in excess of 20 referendums in this country and have provided the context for a flourishing jurisprudence in this area and a much clearer delineation of the role of the courts in referendum issues. 1.2 In terms of constitutional theory, the referendum process has been elevated to very high standing indeed by the courts and described as a core tenet of popular sovereignty. Successive governments have been the subject of rebuke from the High and Supreme Courts as to their conduct in this sphere. Perhaps surprisingly, executive enthusiasm for the process appears to have diminished little, if at all. Indeed governments have shown a growing tendency to offer the electorate a chance to get it right the second time, when they all too humanly err. 1.3 Whilst the most frequent source of controversy is the fetter placed on the executive by the McKenna principles, there are a number of other important but oft-neglected features of referendum law which merit close consideration. This paper will focus on the following aspects: The Clarification of the McKenna Principles in McCrystal v Minister for Children The Role of the Court under the Petition Procedure Potential for Inquiry Approach Review of the Referendum Commission Potential Remedies 2.0 CONSTRAINTS ON THE EXECUTIVE: CLARIFYING THE MCKENNA PRINCIPLES 2.1 The bare text of Articles 46 and 47 of Bunreacht na heireann give little indication as to the forthright manner in which the courts have carved out a role for themselves as defenders of the referendum process, and a corresponding preparedness to curb the executive branch from straying beyond its proper ambit. 2.2 It is worth briefly reminding oneself that the text of Articles 46 and 47 provide as follows in relation to Constitutional Amendment and Referenda: ARTICLE 46: AMENDMENT OF THE CONSTITUTION 1 I am grateful to Niamh Hyland SC and Bairbre O Neill for comments on an earlier draft of this paper. For a detailed further treatment of this area, see Ruane, Reflections on Procedural Rights in Constitutional Referenda [2012] 47 Ir Jur 1; O Neill, The Referendum Process in Ireland [2000] 35 Ir Jur 305; Scott, The House that the Supreme Court Built (2010) Hibernian LJ 219; and also Cearta.ie Eoin O Dell blog postings on the McKenna and McCrystal judgments.

3 1. Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article. 2. Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum. 3. Every such Bill shall be expressed to be "An Act to amend the Constitution". 4. A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal. 5. A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law. ARTICLE 47: THE REFERENDUM 1. Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law Every proposal, other than a proposal to amend the Constitution, which is submitted by Referendum to the decision of the people shall be held to have been vetoed by the people if a majority of the votes cast at such Referendum shall have been cast against its enactment into law and if the votes so cast against its enactment into law shall have amounted to not less than thirty-three and onethird per cent of the voters on the register. 2 Every proposal, other than a proposal to amend the Constitution, which is submitted by Referendum to the decision of the people shall for the purposes of Article 27 hereof be held to have been approved by the people unless vetoed by them in accordance with the provisions of the foregoing sub-section of this section. 3. Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at a Referendum. 4. Subject as aforesaid, the Referendum shall be regulated by law. 2.3 The Courts have also considered that Articles 6 (all powers of government derive from the people); Article 17 (Dail control of expenditure) and Article 28 (the role of Government) play an important role in the referendum process.

4 The McKenna Principles 2.4 The Supreme Court decision in McKenna v An Taoiseach (No 2) [1995] 2 IR 10 marked a profound change in the approach of the judicial branch to the referendum process. What have since become known as the McKenna Principles have proved a potential pitfall for a number of subsequent governments. The bottom line emerging from McKenna v An Taoiseach (No 2) is relatively straightforward: That the Government, in expending public moneys in the promotion of a particular referendum result, was acting in breach of the Constitution. This echoes through the majority judgments: Hamilton CJ 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 Blayney J: the Government is not entitled to expend State monies for the purpose of securing an affirmative result in the referendum. Denham J: in expending public monies to campaign for a specific outcome to a referendum the Government are not acting within their powers under the Constitution and the law Flaherty J: it is impermissible for the Government to use public money to advocate a particular result in the forthcoming referendum. 2.5 The perennial tension arising from McKenna is that the government of the day is by no means condemned to play a neutral role in the referendum. The constraint on government expenditure is not intended to fetter rights of free political expression and participation. As Henchy J made clear in Crotty v An Taoiseach [1987] IR 713 at 788: There is, of course, nothing in the Constitution to prevent the Government or any persons or group or institution from campaigning, advocating for or otherwise working for a change in the Constitution. 2.6 Two obvious questions arise: What precisely do the McKenna principles prohibit? What is the constitutional basis for this prohibition? 2.7 Taking the second question first, the precise ratio of the various majority judgments and the textual basis in Bunreacht na héireann for this landmark decision is far more difficult to pin-point than the bottom-line - no governmental use of public money to advocate a result. Whilst certain passages from the majority judgments can be regarded as reflecting a forthright articulation of a particular constitutional theory of government, the textual source of that theory in Bunreacht na heireaann is more ambiguous. 2 In the 2 See further Ruane, (2012) 47(2) JUR 1; and O Dell, Cearta.ie, Unconstitutional expenditures III the basis of the McKenna prohibition.

5 course of subsequent case law, such as Hanafin v Minister for the Environment, one witnesses the clearer emergence of the principle of popular sovereignty. Popular Sovereignty The concept of popular sovereignty has a clear political and jurisprudential genesis. It can be traced back to the presentation by Eamon de Valera of the draft text of what became Bunreacht na héireann to the Oireachtas when he observed [i]f there is one thing more than another that is clear and shining through this whole Constitution, it is the fact that the people are the masters. 4 In judicial terms, in the landmark decision in Byrne v Ireland [1972] I.R. 241 Walsh J at 262 opined the sovereign authority is the People. It is a canon to which the Supreme Court affords great respect and deference, and in light of which, it is vigilant to safeguard against any inappropriate governmental interference. 2.9 It might be said the over-arching theme which runs through the judgments in McKenna (No 2) (and McCrystal as will be presently considered) is this concept of popular sovereignty, 5 which requires equal democratic participation in the referendum process. Indeed it has been described as our constitutional cornerstone, upon which the entire referendum edifice is constructed. (per Hogan J, Doherty v Referendum Commission [2012] IEHC 211) This vesting of ultimate decision-making in the people rests atop traditional separation of powers analysis: see e.g. TD v Minister for Education [2001] 4 IR 259 at 312, per Denham J. In Hanafin Denham J described the Constitution as grounded in the will of the people and Flaherty J cited the sanctity of the role of the people in our constitutional scheme of things This is also wholly consistent with the [dissenting] comments of Hardiman J in Pringle v Government of Ireland [2012] IESC 47, endorsing the prior dicta of Hederman J in Crotty v An Taoiseach [1987] IR 713 at 794, that the organs of the State who enjoy the various individual powers set out in the Constitution, such as the Oireachtas and the Government, are the guardians of these powers - not the disposers of them. Likewise, Hogan J in Doherty v Referendum Commission [2012] IEHC 211 affirmed that the Constitution envisaged a plebiscatary as well as a parliamentary democracy. Confusion and Criticisms of McKenna 2.12 The confusion from McKenna arises from the somewhat different points of emphasis of the four majority judgments in identifying against precisely which constitutional 3 See generally: O Cinneide, The People Are The Masters The Paradox Of Constitutionalism And The Uncertain Status Of Popular Sovereignty Within The Irish Constitutional Order [2012] Ir Jur Dáil Debates Col.40, May 11, 1937: quoted by J. A. Murphy, The 1937 Constitution-Some Historical Reflections in T. Murphy and P. Twomey (eds), Ireland's Evolving Constitution, : Collected Essays (Oxford: Hart, 1998), p See also Byrne v Ireland [1972] I.R. 241 at 262 per Walsh J

6 principles government funding of partisan campaigns offends. Certain high level concepts are invoked with little elaboration as to their substantive content Hamilton CJ (with whom Denham J as she then was agreed, though she delivered an independent judgment) considered the Government had no role in the conduct of the referendum process and the people should be permitted to reach their decision free from any unauthorised interference by any of the organs of the State. [p42] He was satisfied that the government in expressing its views [on information relating to the Referendum proposal] and requesting or advising the voters to vote for the proposal was not an action in the exercise of the executive power of the State. [p41] Perhaps surprisingly, Hamilton CJ did not articulate any specific reasons for this significant conclusion. 6 The Chief Justice was prepared to accept that the Government was acting in accordance with its rights in the giving of factual information with regard to the proposal which is the subject of the referendum, in expressing its views thereon and in urging the acceptance of such views. [p40] 2.14 McKenna has been criticised from a number of quarters as crippling the power of democratically-elected governments to intervene in any effective in a referendum campaign. 7 Meanwhile the point has been made that private parties with no democratic mandate whatsoever suffer no equivalent such comprehensive disadvantage. 8 This goes too far. Properly understood, the government is not at all constrained from taking to the campaign trail, merely from dipping into the public purse. Government must draw on party coffers rather than the national treasury Whilst the diversity of judicial opinion in McKenna offers fertile ground for academic debate and at first glance suggests a certain fragility to the McKenna Principles, these Principles have been robustly re-indorsed very recently in McCrystal v Minister for Children and Youth Affairs [2012] IESC For this reason, the primary focus in this paper is on the important clarification provided by the Supreme Court as to the parameters of those principles, rather than a probing analysis of their constitutional moorings. Clarification of McKenna Principles in McCrystal 2.17 In McCrystal, Fennelly J observed at paragraph 18 that the McKenna Principles must be taken to be a fully binding part of our law regarding the conduct of referendums pursuant to the Constitution The Chief Justice stated that the majority of the Supreme Court in McKenna had found a breach of the constitutional right to equality, but she also remarked on the references in the judgments to concepts of the democratic process and fair procedures. Murray J 6 See Ruane, Reflections on Procedural Rights in Constitutional Referenda (2012) 47(2) JUR 1 7 Barrett, Building a Swiss Chalet in an Irish Legal Landscape? Referendums on European Union Treaties in Ireland and the Impact of Supreme Court Jurisprudence (2009) 5 EU Const LR at p58 8 ibid

7 referred to the nature and essence of a referendum involving the people directly in the governance of the country, a right enjoyed exclusively by them. The majority judgments strongly suggest that a restricted role for the the organs of State - once the appropriate Referendum Bill has been passed - is a necessary safeguard of the right of equal participation in the referendum process We have seen the over-arching concept underpinning McKenna (No.2) and McCrystal is this idea of popular sovereignty. In turn, the judgments in McCrystal and McKenna (No.2) source this important principle in four more familiar constitutional concepts: THE RIGHT TO EQUALITY 10 McKenna (No2): per Denham J at 52-3; Hamilton CJ at 24; Blayney J at 49; O Flaherty J at 43: [t]o 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) McCrystal: per Denham CJ at 34, 37 and 77; Fennelly J at 23; Murray J at 17-20, 24; O Donnell J at 36-8 THE RIGHT TO A DEMOCRATIC PROCESS McKenna (No.2): per Denham J at 52 McCrystal: per Denham CJ at 37; Murray J at 21-22, 28 RIGHT TO FAIR PROCEDURES 11 McKenna (No 2): Hamilton CJ, 42; Denham J, 52; Blayney J: a decision by way of referendum could have a profound influence on the whole of society in the State. Can it be doubted that the requirement that the amendment be submitted to the decision of the People should be construed as providing for fair procedures? ); McCrystal: Denham CJ at 37; O Donnell J at ( constitutional justice ) THE RIGHT TO FREEDOM OF EXPRESSION 12 McKenna (No 2): Denham J at p52; McCrystal: Denham CJ at 37; O Donnell J at In total Denham CJ divined nine principles from the McKenna judgment which merit restatement in full: (i) The Government is entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of 9 Denham CJ at [24]; Murray J at [24] 10 See also Coughlan v The Broadcasting Complaints Commission [2000] 3 IR 1 11 Kelly v Minister for the Environment [2002] 4 IR See also Hanafin where Hamilton CJ refers at 422 to the right of freedom of discussion

8 (ii) these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure. Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense. Any 'information' disseminated by the Government at public expense must be equal, fair, impartial and neutral. The Government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to advocate the proposed change. Government Ministers may use their State transport in relation to the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members must not spend public monies in favour of one side. The Right to Equality (iii) The right to equality applies in the referendum process. Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens. (iv) Spending public monies in favour of one side of a referendum puts the voting rights of one class of citizen (those in favour of change) above those of another class of citizen (those against). (v) The public purse must not be expended to espouse a point of view which may be anathema to certain citizens, who, of necessity, have contributed to it. The Right to a Democratic Process (vi) There is a right to a democratic process in the holding of a referendum. It is an interference in the democratic process for the Government to spend public monies in a referendum campaign to benefit one side rather than another. The democratic process is protected by the McKenna principles. Right to Fair Procedures (vii) In submitting the proposed amendment to the decision of the people, the Government should observe fair procedures. The scales must be held equally between those who support and those who oppose an amendment to the Constitution. Right to Freedom of Expression (viii) (ix) The freedom to express opinions incorporates the corollary right that in the democratic process of free elections, public funds should not be used to fund one side of an electoral process, whether it be a referendum or a general election, to the detriment of the other side. The Government has a right to give information, to clarify situations, to give explanations and to deal with unforeseen matters and emergencies, but in doing so, public funds should not be used to favour one side in a referendum.

9 Findings on the Facts in McCrystal 2.21 The Department of Children had expended money on a booklet, website and advertising campaign intended to provided information in relation to the Referendum and which was distinct and supplemental to the material produced by the Referendum Commission. The plaintiff contended the language and images used were emotionalised and partisan. The Supreme Court considered the Departmental published media failed the test of being fair, equal and impartial, failed to be neutral, and failed to hold the scales equally between both sides. The Court highlighted the governmental concern with brand and the use of evocative language and imagery, including slogans such as protecting children, and supporting families and the identification of a need for a Referendum, together with images of children targeted at eliciting emotional responses from voters. Test for Infringement 2.22 The Supreme Court endorsed the principle that publicly funded publications must be fair, equal, impartial and neutral. The Court considered the High Court had set the bar too high in requiring something blatant and egregious. The proper test was whether there has been a clear disregard of this obligation Significantly, O Donnell J acknowledged that subtle advocacy may be much more effective than a blatant or egregious advocacy. He continued at [42]: Indeed much successful campaigning in a political context may involve avoiding hard edged statements of detail with which people may disagree, and an attempt to associate the candidacy or proposal with ideas which themselves are popular and acceptable and the creation of a mood an impression which is favourable. It is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics, is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point. The only question is whether it was fair, equal, impartial and neutral There has been a clear retreat from any requirement of intentionality which had long been associated with the McKenna (No2.) judgment, arising from the references in that judgment to the design, purpose and aims of the expenditure. 13 In McCrystal Murray J stated the intention of the disseminator of the information is not determinative of the outcome of [court] scrutiny. Fennelly J likewise said: The intention of the relevant State authority is not relevant. The measure now is whether the expenditure, objectively considered is fair, equal, impartial and neutral This alertness to subtle advocacy and diminished significance of intentionality means that any publication by a Department of Government of an informational guide, parallel 13 See for example discussion in Coughlan v Broadcasting Commission of Ireland by Keane J at para 167

10 to the Referendum Commission s neutral guidance is likely to invite for exacting scrutiny, where the Government is advocating a particular result as will invariably be the case The Referendum Commission in its most recent report on the Children s Referendum has highlighted the risk of confusion and the duplication of cost associated with dual public information campaigns and has doubted the wisdom of same. It has recommended that the Commission should be permitted to perform its statutory functions of explaining the referendum proposal in an impartial and neutral manner without the potential confusion of a second publicly-funded information campaign It is worth noting that, notwithstanding the criticisms which have been levelled at McKenna, it is in keeping with international standards, including the views of the Council of Europe. The Supreme Court observed that the European Commission for Democracy through Law (the Venice Commission) Code for Good Practice on Referendums (March 2007) opposes the expenditure of public money to advocate particular results in referenda. Arguably such restrictions can hardly be regarded as surprising, as outside of such public funding as is provided to political parties under the Electoral Acts, governments are not entitled to spend public monies on election campaigns. 3.0 PETITIONS UNDER PART IV OF THE REFERENDUM ACTS ROLE OF THE COURT 3.1 Part IV of the Referendum Act 1994 provides the scope for a quite innovative role for the Courts in the context of the petition process, which has yet to be full explored by the Courts. Given time constraints, it is proposed to briefly consider the architecture of this process in outline only. Notwithstanding the statements in McCrystal regarding the onus of proof, some reflections on the scope for the court to undertake an inquiry would still seem warranted, together with the possible implications that might have for the conventional adversarial process. The Petition Process 3.2 Section 42: Referendum Petitions Validity of a provisional referendum certificate may only, be questioned by a petition to the High Court as provided for under the 1994 Act. Requirement to obtain leave not later than 5 days after publication in Iris Oifigiúil Leave Threshold: o prima facie evidence of one of the matters referred to in section 43: o and the matter is such as to affect materially the result of the referendum as a whole. [see discussion of test in Hanafin v Minister for the Environment] Application for leave to present petition may be made by DPP or any person who is entitled to be registered as a presidential elector. 3.3 Section 40: Provisional Referendum Certificate 14 The Referendum Commission s Report: Referendum on the 31st Amendment of the Constitution (Children) Bill 2012, May 2013.

11 Referendum returning officer receives a s.37 report from each local returning officer detailing total numbers of valid votes in each constituency; Signs provisional referendum certificate stating: o the number of votes in favour of the proposal, the number of votes against and whether or not a majority was in favour; o the number of votes in each constituency in favour and against the proposal. 3.4 Section 43: Grounds for Referendum Petition (a) the commission of an offence referred to in Part XXII of the Act of 1992 (b) obstruction of or interference with or other hindrance to the conduct of the referendum; (c) failure to complete/conduct the referendum in accordance with the 1994 Act (d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate. It will be noted that it has been held in Hanafin v Minister for the Environment (Hamilton CJ at 429; Barrington J at 453-4) that a breach of the McKenna principles will constitute irregularity in the conduct of the referendum. Petition Procedure Order 97 RSC 3.5 Motion ex parte to the High Court: Order 97, r 3(1) The Court has discretion to adjourn and direct that notice be given to such parties as the Court deems appropriate Order 97 r3(4) 3.6 Where leave is granted further orders may be made: reducing the amount required to be lodged by the petitioner as security, as to the suitability of proposed sureties, giving directions as to the further service of the petition, or giving such other directions as seem appropriate 3.7 The Particulars required in a petition are set out in section 45 of the 1994 Act and include details of: the provisional referendum certificate to which it relates, the grounds on which it is based, the remedy it seeks the name and address of the petitioner and the petitioner's solicitor or agent, if any. 3.8 Various provisions as to security for costs are found in section 44(2) and Order 94 rules Remedies 3.9 Section 47: Recounting of votes in a constituency Section 48: Referendum to be taken again in a constituency Blayney J observed in Hanafin that, applying the provisions regarding singlular and plural from the Interpreation Act 1937, this impliedly gave the court power to direct the referendum be taken again in every constituency

12 Section 48(2) provides 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 noncompliance or error did not affect the result of the referendum as a whole Final Orders on Petition: section 57 - The final order of the court on the trial of the referendum petition shall either (a) confirm without alteration the provisional referendum certificate which was the subject of the petition, or (b) direct that the said certificate shall be amended in accordance with the findings of the court (including the result of any counting afresh of votes or any retaking of the referendum) and confirm the certificate as so amended. Miscellaneous Aspects 3.11 Withdrawal: No withdrawal of petition without leave of Court: section 49 An affidavit must be sworn as to reasons for withdrawal and confirming that there is no agreement for withdrawal in consideration of payment and that there is no substantial reason for the withdrawal, which is not contained in the affidavit. see Order 97 rule 13 RSC 3.12 Substitution of a Petitioner: Section 50 provides that in the case of an application for leave to withdraw, there is provision for substitution of another petitioner who would have been eligible to bring the petition see Order 97 rule 14 RSC 3.13 Witnesses: Under section 52 the Court is entitled of its own volition, at any time during the trial of a referendum petition, to direct that a particular person shall be brought before the court and shall give evidence at the trial. Order 97 rule 18 provides that evidence is to be viva voce unless otherwise ordered and consequently Order 39 RSC applies The provisions as to witness evidence are particularly significant in light of the Supreme Court s holding in Hanafin v Minister for the Environment that opinion poll evidence is admissible. See Order 97 rule 18 RSC 3.15 Statement of Cases to Supreme Court: Section 55 provides that the court may of its own motion or on the application of either party state a case to the Supreme Court on any question of law arising at the trial. Applications for a case stated should be brought by Motion on Notice. See Order 97 rule 19 RSC Inquiry Role

13 3.16 Where there has been an undisputed breach of the McKenna principles or other establish governmental wrong in the conduct of a Referendum it has sometimes been mooted that it is more appropriate for the High Court to carry out its task under Part IV in the form of an Inquiry. This approach received strong judicial support from O Flaherty J in Hanafin v Minister for the Environment [1996] 2 IR 321 at 434: That leads me to hold with the submission which was advanced on behalf of the petitioner that it would have been better in carrying out its essential task, which was to determine whether the referendum result was in harmony with the Constitution and the legislative provisions that regulate how the Constitution is to be amended, if the divisional court had conducted this petition in the form of an inquiry, since the Government's wrong was not in issue in the case, only its affect. There was a serious obligation on the Government, in those circumstances, to allow the Court to carry out a full and free investigation as to the affect the wrong-doing might or might not have had on the referendum result. In that way, the precepts contained in The State (Quinn) v. Ryan [1965] I.R. 106 and Meskell v. C.I.E. [1973] I.R. 122 would have been best implemented. Instead, I am afraid the case went its way with all the trappings and disadvantages (as far as this case was concerned, in any event) of an adversarial contest. The petitioner was made to attempt to prove his case. And so while some matters of fact were admitted by the Government, there was an objection to the admissibility of the results of the opinion polls commissioned by the Government for example. This objection had no discernible reason or purpose. The advertising campaign was conducted in the light of what opinion polls taken from time to time were throwing up and that information would, in turn, be used to power the advertising campaign. It should, of course, be said that the objection concerning the reception of the opinion poll evidence was over-ruled and that this evidence was received, evidence which was both relevant and pertinent Denham J, too, in Hanafin considered it more appropriate to have a full enquiry but, read in context, this may not offer such generous support to a inquisitorial process as might first appear. The comments were juxtaposed with an alternative of cutting the proceedings short without hearing evidence from the respondent. She went on to observe that the fundamental role of the Court remained unaltered, and the onus of proof remained with the petitioner The McCrystal judgments certainly re-affirm the onus of proof rests with the party alleging any breach of the McKenna Principles, and that is hardly contentious. But that is a quite different context to an inquiry role assumed by the court in the context of established breaches See general discussion as to distinct nature of adversarial and inquisitorial processes in Maguire v Ardagh [2002] 1 IR 385. Whilst not the norm in conventional inter partes litigation in common law jurisdictions, the Irish courts

14 3.19 Nominally the burden of proof presumably still rests with the petitioner. But the practicalities of court assuming an inquisitorial function necessarily impact upon the traditional dynamic of satisfying the onus of proof in an adversarial trial. It remains to be seen whether the courts will actively take up a mantle of assuming this more continental, inquisitorial role in the supervision of this constitutional process. It would certainly be consistent with the role they have defined for themselves in safeguarding the integrity of popular sovereignty. 4.0 FUNCTIONS OF THE REFERENDUM COMMISSION 4.1 Doherty v The Referendum Commission [2012] IEHC 211 offers very useful guidance as to certain key issues regarding the role and standing of the Referendum Commission established under the Referendum Acts. Juristic Status of Commission 4.2 Hogan J confirmed that the Commission is indeed a juristic person and hence it was inappropriate to name the Chairperson as a party to proceedings. He acknowledged that the Act of 1998 does not specify in terms that the Commission is a juristic person which can sue and be sued. Nevertheless he considered it inescapable and an inevitable corrolary of its establishment by statute that it was a juristic person: it seems to me inescapable from the terms of the Act of 1998 that the Oireachtas intended that the Commission should have legal personality. The very fact that the Commission was established by statute carries with it the inevitable corollary that it is a juristic person created by statute. Commission Statements - Whether Amenable to Review 4.3 Section 3 of the Referendum Act 1998, amended by s.1 of the Referendum Act 2001, confers the power on the Commission to prepare statements containing a general explanation of the subject matter of the proposal. Hogan J observed that the Oireachtas did not intend to impose an obligation that such statements should be so carefully parsed as to reflect the level of debate one might expect amongst constitutional law scholars: The Commission's statements should not be parsed or analysed for the absolute precision and complete accuracy of discussion or analysis which would be expected in, for example, an authoritative constitutional law textbook. Most members of the public would not have either the time, inclination or the training to examine or follow commentary of this kind. They would quite understandably be repelled by the thought of digesting what they would (rightly) regard as the terse and almost incomprehensible verbiage of the lawyer. This means in practice that the Commission must be given a wide freedom to communicate its message to the wider public. are no stranger to the discharge of an inquisitorial role in certain spheres: e.g. Minister for Justice v Tobin [2011] IEHC 72 (extradition ) and H.S.E. v O.A. [2013] IEHC 172 (childcare)

15 4.4 The judge observed that the orthodox position had typically been that the Commission s statements were not reviewable on the basis that misleading statements of law did not affect legal rights and were not generally justiciable matters. Hogan J, however, considered that the obligation imposed by the Referendum Act 1998 that statements be fair and non-partisan, conferred a supervisory role upon the court in terms of vires, where the statutory requirement was breached. The court would only interfere with a statement when it was plainly wrong or manifestly inaccurate or misleading. In so doing, the court drew guidance from the provisions under s.43(3) of the 1994 Act and stipulated that it be necessary that it was likely the outcome might be materially affected. 5.0 REMEDIES 5.1 One final important issue warranting consideration is the elusive nature of remedies for aggrieved persons, in situations where the Government of the day breaches the McKenna principles or otherwise improperly conducts a Referendum process. 5.2 Most proceedings in relation to referenda have not been brought under the Part IV Petition process. In virtually every case where successful challenge has been brought to the conduct of governments in the context of referenda, the relief has been declaratory: see e.g. McKenna (No.2); Sherwin v Minister for Environment (though failing on the constitutional claim); McCrystal v Minister for Children and Youth Affairs. The view has generally been expressed that such relief was sufficient and that the Government of the day would respond by ceasing such conduct or expenditure forthwith. Barrington J in Hanafin v Minister for the Environment [1996] 2 IR 321 observed that following the declaratory relief by the Supreme Court in McKenna, the Government immediately acknowledged itself in the wrong and wound down its advertising campaign. In McCrystal the Court had granted a declaration prior to delivering reserved judgment and Denham CJ commented at p4 that: The Court granted a declaration that the respondents had acted wrongfully in expending or arranging to expend public monies for the purpose of promoting a particular result in the Referendum. The Court did not consider it either appropriate or necessary to grant an injunction, as it was assumed, correctly, that the respondents would cease distributing the material. This general judicial restraint is unsurprising and is consistent with the general reticent approach towards directing executive conduct articulated in TD v Minister for Education [2001] 4 IR 259. (The injunctive relief sought in McCrystal was confined to expenditure on and distribution of partisan material.) 5.3 The second general observation one would make is that applications for injunctions to restrain a referendum from being held have been universally unsuccessful: see e.g. Roche v Ireland [1983] IEHC 90; Finn v Attorney General [1983] IR 154; Slattery v An Taoiseach [1993] 1 IR 286; Riordan v An Taoiseach (No 2) [1998] IESC 45; Morris v Minister for the Environment [2002] 1 IR 326.

16 5.4 Of course, the most notable referendum case in which injunctive relief was exceptionally granted is Crotty v An Taoiseach [1987] IR 713. The case concerned the proposed ratification of a European Treaty in the absence of a referendum, which it was ultimately held was constitutionally required. In Crotty Finlay CJ, granting an injunction, remarked: "As to the second question, whether the balance of convenience justifies the granting of an interlocutory injunction, the balance of convenience in the context of the Constitution is exceptional and considerations different to those of the ordinary injunction apply. If the interlocutory injunction sought by the plaintiff were not granted, then the Government's act of ratification would deprive this Court of its jurisdiction or power to grant to the plaintiff the remedies necessary to protect his constitutional rights. If that submission is correct, a fair argument has been made out and it constitutes what, in my view, would justify making an exception, given a reluctance to interfere with the Executive." 5.5 The more recent judgments in Pringle v Government of Ireland [2012] IESC 47 suggest that in situations where the Government is exercising its constitutionally defined executive function in the realm of foreign affairs, the Court should be slow to intervene. Where an urgent decision is required affecting inter-state relations the balance of convenience will frequently lean against an injunction where a challenge may still continue. O Donnell J stated at [45]: [T]hat should not obscure the fact that fundamentally, a court should be very slow to take a step which may involve effectively substituting its decision even if only temporary and suspensive, for that of the Government in matters of foreign affairs. Accordingly, in my view, the proper functioning of the constitutional balance requires that considerable weight indeed should be accorded to the constitutional interest in ensuring that the Government performs the executive functions assigned to it in the way it considers appropriate and for which it is accountable in the first place to the Dáil and through it to the People. The constitutionality of the measure can still be challenged after it has come into effect. There may be cases which are particularly clear and strong, and which are attended by considerations such as unreviewability, immunity and urgency. It is not necessary or indeed wise to anticipate such eventualities. It is enough to say, that this case is decidedly not one such. Here, the balance of convenience, on any view, weighs heavily against the grant of an injunction. The Plaintiff s claim has been addressed with considerable expedition, in the High Court, this Court, and the ECJ. That process will provide a very speedy resolution of the issues raised by the plaintiff. Pending the final outcome of those proceedings the challenged measures, both at domestic and EU level, remain in place. In my view that is the appropriate, and certainly preferable, way to the address the Plaintiff s concerns. 5.6 Clarke J s judgment contrasted the irreversability of the amendment to the European legal order and treaties embodied by the Single European Act with the ESM treaty which operated at a sub-constitutional level and would not have the effect of amending the underlying legal basis for a Community or Union of which Ireland was a member.

17 5.7 The Court also referenced the relevance of the ECJ test in C-465/93 Atlanta Fruchthandelsgesellschaft mbh v. Bundesant für Ernährung and Forstwirtschaft [1995] ECR I-3761 to European issues. Under Atlanta, the court must entertain serious doubts as to the validity of a measure, prior to granting an injunction. Very arguably this sets the merits bar considerably higher than would apply under Campus Oil principles. On either test however, the Supreme Court considered injunctive relief was not appropriate in Pringle. High Threshold to Petition Remedies 5.8 It would appear from Hanafin v Minister for the Environment that the threshold to substantive relief - such as a requirement that the referendum be taken again in one or a number of constituencies - is very high indeed. This is unsurprising as disturbing the result of a popular vote is a judicial intervention of seismic significance. 5.9 Nevertheless, it is of concern that some of the obiter comments in Hanafin set the bar for interference so high, that if applied, it would risk conferring a substantial immunity on the executive from the consequences of its illegal conduct in a referendum process It should be borne in mind that the margin in the divorce referendum the subject of challenge in Hanafin was exceedingly tight, just 0.56%. Barrington J stated that the motivation of people in voting the way they did is not something a court can look into it would be inconsistent with the secrecy of the ballot. He was most circumspect about expert evidence purporting to assess what factors influenced voters: We know how they voted. We don't know why they voted the way they did. We are not competent to interrogate them as to do so would amount to breaking the secrecy of the ballot. Primary evidence being thus excluded it seems to me that we cannot accept secondary evidence from experts who seek to second guess why the people voted the way they did. O Flaherty J suggested that calculating the extent to which the populace was influenced by the Government s advertising campaign was something incapable of proof O Flaherty proceeded to advocated that a presumption in favour of upholding the popular vote should apply, equal to the presumption of constitutionality enjoyed by legislation: In any event, questions concerning both the burden and standard of proof are most apt for consideration in the light of the evidence in a case; therefore, we often speak of the evidentiary burden of proof. Here the more pertinent point is that since legislation passed by the Oireachtas [cases omitted] as well as Bills passed by the Dáil and Seanad, and which are sent by the President to the Court on Article 26 references which deals with this matter comprehensively) enjoy a presumption of constitutionality, so should a decision of the people exercising their law-making capacity be respected and enjoy a presumption which is at least as strong. Since the basic presumption is grounded on the respect which one organ of State owes to another and since all powers of government, legislative, executive and judicial,

18 derive, under God, from the people (Article 6), it would seem to follow that even greater respect must be accorded to the decision of the people made in a referendum He then sugggested the setting aside of a referendum must be regarded as an awesome undertaking Significant judicial reticence in disturbing a popular vote is both understandable and justified. It should be remembered though, that in many instances illegal conduct on the part of the Government will already have been established as a precursor to the bringing of a petition. If campaign conduct has been unconstitutional why would the vote still retain a presumption of constitutionality? The East Donegal analogy as to presumed constitutionality of legislation is simply not comparable, and any such presumption would sit in stark contrast to an alternative analogy, namely the treatment of unconstitutionally obtained evidence. 16 Indeed it is questionable what such a test adds to the analysis beyond the statutory test of material effect. The existence of the petition procedure and the various grounds are predicated upon the notion that something has impacted upon a referendum result and judicial intervention may be appropriate If Part IV of the Referendum Act 1994 is not to be denuded of any practical relevance, then one would tentatively suggest that some of the obite remarks in Hanafin v Minister for the Environment must go too far. It is not at all suggested that the courts should lightly weigh the task of setting aside a referendum result, nor to readily direct that a vote be re-taken. Nevertheless, the object of all campaigns is to materially affect the result of a vote It has been seen that the courts regard polling evidence as admissible. It can scarcely be doubted that political polling has reached a very high degree of sophistication in recent decades and has become a core tool around which campaign strategies are designed. Integral to such campaign strategies is the potent capacity to strongly influence voter outcomes alluded to by O Donnell J in McCrystal - through positive associations rather than direct persuasion. Where there has been a conspicuous breach of the McKenna principles and a declaration is not obtained until the eve of voting, the impact of mass media should not be underestimated. It seems incumbent upon the court to searchingly inquire whether illegal expenditure materially influenced the result, if the courts are to adequately defend the integrity of the referendum process, so lauded in the various judgments. -END- 16 see e.g. The People v O Brien [1965] IR 142