Fisher v an Taoiseach
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 20 April 2018 |
| Neutral Citation | [2018] IEHC 216 |
| Docket Number | [2018 No. 285 J.R.] |
| Court | High Court |
| Date | 20 April 2018 |
IN THE MATTER OF LEAVE FOR JUDICIAL REVIEW
AND IN THE MATTER OF ARTICLE 16 OF THE CONSTITUTION AND IN THE MATTER OF SECTION 63 OF THE ELECTORAL ACT 1997 AND IN THE MATTER OF THE REFERENDUM ON THE REPEAL OF EIGHTH AMENDMENT OF THE CONSTITUION
[2018] IEHC 216
[2018 No. 285 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Election – Constitution – Judicial review – Arts. 16 & 47 of the Constitution – S.63 of the Electoral Act 1997 – Referendum on the repeal of the Eighth Amendment to the Constitution – European Convention on Human Rights ('the Convention') – Postal voting – Breach of constitutional rights
Facts: The applicant sought leave to seek a declaration that the respondents had breached arts.16.2 and 47.3 the Constitution by not allowing the applicant to cast his vote in the referendum on repealing the Eighth Amendment to the Constitution by post. The applicant claimed that he was unable to go in person on the polling day to vote at the polling station so he was entitled for postal voting but the respondents had failed to recognize and provide him the constitutional right to vote. The applicant also contended that voting was an 'expression' under art. 10 of the European Convention on Human Rights so there was an infringement of his freedom of speech and expression.
Mr. Justice Meenan refused to grant the reliefs sought by the applicant. The Court held that the decision of the respondents was not in breach of the constitutional rights of the applicant because there was no statutory provision regarding the postal voting, and if the applicant had been allowed for the postal voting, then that would have to be done by way of amendment to the relevant legislation. The Court observed that the applicant had failed to build that there was any impediment to his freedom to express his views and opinions on the issues that arose in the referendum on the Eighth Amendment to the Constitution.
The applicant, a journalist and broadcaster, resides in County Monaghan. He is a registered voter, being on the electoral register for 2018/2019 for Monaghan County Council.
On 28th March, 2018 it was confirmed that the date to be included in the Referendum Bill for the holding of the referendum on the Eighth Amendment to the Constitution would be 25th May, 2018. For the reasons set out at para. 7 of his affidavit, the applicant will not be able to vote in person at his designated polling station on that date.
'7. On 2 March, 2018, I booked a Ryanair Flight 354 for my wife, Evelyn and me, from Dublin to East Midlands Airport Nottingham departing on Friday 25th May at 8:05am and returning on Wednesday 30th May. We are travelling to England for a short holiday and will also be babysitting for our daughter who is attending a wedding in Sheffield that weekend and has an infant son aged 9 months old ...'
Given his inability to attend at his polling station on 25th May, 2018, the applicant wrote to the local franchise officer of Monaghan County Council enquiring as to whether he could cast his vote via postal vote. In response, the applicant was informed that there is no provision in the legislation for postal votes for persons in the applicant's circumstances.
On 13th April, 2018, on notice to the respondents, the applicant sought leave to seek a number of reliefs by way of judicial review. These reliefs are inter alia:
(i) A declaration that the respondents' failure or refusal to allow the applicant to be included on the postal voter register thereby enabling him to vote in the Referendum on repealing the Eighth Amendment to the Constitution to be held on 25th May, 2018 is in breach of Articles 16.2 and 47.3 the Constitution, is unlawful, ultra vires and/or of no force or effect.
(ii) A declaration that those provisions of s. 63 of the Electoral Act 1997 that operate to exclude the applicant from being included on the postal voter register so that he may be able to vote in the Referendum are unconstitutional and invalid.
(iii) A declaration that the respondents' failure or refusal to allow the applicant to be included on the postal voter register to enable him to vote in the Referendum is a breach of Article 10 and/or Article 3 of the First Protocol to the European Convention on Human Rights and thereby in breach of the respondents' obligations pursuant to s. 3 of the European Convention on Human Rights Act 2003.
(iv) A declaration of incompatibility pursuant to s. 5 of the European Convention on Human Rights Act 2003 that those provisions of s. 63 of the Electoral Act 1997 that operate to exclude the applicant from being included on the postal voter register so that he may be enabled to vote in the Referendum are contrary to and incompatible with the State's obligations pursuant to Article 10 and/or Article 3 of the First Protocol to the European Convention on Human Rights.
The parties agreed as to what the appropriate test to be applied is. I refer to the oft cited passage of Finlay C.J. in G. v. the Director of Public Prosecutions [1994] 1 I.R. 374, where he stated at pp. 377-378:
'An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:—
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks...'
The test was considered in the Supreme Court decision of Esmé v. the Minister for Justice, Equality and Law Reform [2015] IESC 26. In his judgment Charleton J., having cited the said passage from G. v. Director of Public Prosecutions, stated:
'14. While in Gordon v Director of Public Prosecutions [2002] 2 IR 369 this has been described as a 'low threshold', per Fennelly J. at p. 372. What an arguable case might mean was also amplified by Denham J. in the G decision, with whom Blayney J agreed. At p.382, she stated:
"This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar - to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily... It is a preliminary filtering process for which the applicant is required to establish a prima facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof to discharge."
In contrast, in S. and Others v Minister for Justice and Equality [2013] IESC 4, Clarke J. referred at para. 5.1 to "a sufficiently arguable case.. for the grant of leave to seek judicial review in the light of the existing jurisprudence." Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be shown that a prima facie legal argument has been established....'
In order to meet the 'arguability test', it seems to me that an applicant has to point to some provision of the Constitution, statute or legal authority which, on a reasonable interpretation, would support the case being made. Further, in a case such as this, where the statute in question enjoys the presumption of constitutionality, this is a factor which the court must take into account when deciding whether the arguability test has been met. I will now consider the various grounds upon which the applicant seeks leave.
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