Joanna Jordan v Minister for Children and Youth Affairs and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 20 June 2014
• Neutral Citation: [2014] IEHC 327
• Court: High Court
• Date: 20 June 2014

[2014] IEHC 327

THE HIGH COURT

[No. 11697 P/2012]

Jordan v Min for Children & Ors

BETWEEN

JOANNA JORDAN

PLAINTIFF

AND

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

DEFENDANTS

CONSTITUTION ART 42.5

CONSTITUTION ART 42A

THIRTY-FIRST AMDT OF THE CONSTITUTION (CHILDREN) BILL 2012

MCCRYSTAL v MIN FOR CHILDREN 2012 2 IR 726 2013 1 ILRM 217

MCKENNA v AN TAOISEACH (NO 2) 1995 2 IR 10 1996 1 ILRM 81

O'DONOVAN v AG 1961 IR 114 1962 96 ILTR 121

CONSTITUTION ART 16.2.3

CONSTITUTION ART 40.1

REFERENDUM ACT 1994 S42

THIRTY FIRST AMDT OF THE CONSTITUTION (CHILDREN) BILL 2012, IN RE UNREP MCDERMOTT 18.10.2013 2013/50/14183 2013 IEHC 458

REFERENDUM ACT 1994 S42(1)

REFERENDUM ACT 1994 S42(3)

REFERENDUM ACT 1994 S43(1)

REFERENDUM ACT 1994 S47

REFERENDUM ACT 1994 S48

REFERENDUM ACT 1994 S57

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CAHILL v SUTTON 1980 IR 269

NORRIS v AG 1984 IR 36

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (IRL) LTD v COOGAN & ORS 1989 IR 734

CONSTITUTION ART 5

CONSTITUTION ART 6

CONSTITUTION ART 15

CONSTITUTION ART 46

CONSTITUTION ART 47

REFERENDUM ACT 1994 S7

REFERENDUM ACT 1994 S8

REFERENDUM ACT 1994 PART II

REFERENDUM ACT 1994 PART III

REFERENDUM ACT 1994 S40

CONSTITUTION ART 46.5

REFERENDUM ACT 1994 PART IV

REFERENDUM ACT 1994 S44

REFERENDUM ACT 1994 S45

REFERENDUM ACT 1994 S46

REFERENDUM ACT 1994 S52

REFERENDUM ACT 1994 S52(2)

REFERENDUM ACT 1994 S49(2)(A)

REFERENDUM ACT 1994 S49(2)(B)

REFERENDUM ACT 1994 S50

REFERENDUM ACT 1994 S51(1)(A)

REFERENDUM ACT 1994 S51(1)(B)

REFERENDUM ACT 1994 S43

HANAFIN v MIN FOR THE ENVIRONMENT & ORS 1996 2 IR 321

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

BANCO AMBROSIANO SPA & ORS v ANSBACHER & CO LTD & ORS 1987 ILRM 669

O LAOIRE v MEDICAL COUNCIL UNREP SUPREME 25.7.1997 1998/29/11470

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

INTERPRETATION ACT 1937 S11

INTERPRETATION ACT 2005 S18(A)

REFERENDUM ACT 1994 S18

CONSTITUTION ART 47.1

REFERENDUM ACT 1994 S48(2)

CONSTITUTION ART 47.2

RSC O.84

REFERENDUM ACT 1994 S6

REFERENDUM ACT 1994 S43(1)(A)

REFERENDUM ACT 1994 S43(1)(C)

REFERENDUM ACT 1994 S43(1)(D)

REFERENDUM ACT 1994 S43(1)(B)

ROTHWELL v MOTOR INSURERS BUREAU OF IRELAND 2003 1 IR 268 2003 1 ILRM 521 2003/46/11196

HANRAHAN v MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234

CONSTITUTION ART 40.3

DPP v KENNY 1990 2 IR 110

REFERENDUM ACT 1994 S10

REFERENDUM ACT 1994 S11

REFERENDUM ACT 1994 S10(1)

REFERENDUM ACT 1994 S11(1)

REFERENDUM ACT 1994 S11(2)

CONSTITUTION ART 15.3.2

CONSTITUTION ART 15

CONSTITUTION ART 15.2.1

SLATTERY & ORS v AN TAOISEACH & ORS 1993 1 IR 286

FITZGIBBON v IRELAND & AG UNREP SUPREME 8.6.2001 2001/9/2499

CONSTITUTION ART 29.6

MCD (J) v L (P) & M (B) 2010 2 IR 199

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

DELCOURT v BELGIUM 1979-80 1 EHRR 355 1970 ECHR 1

DOMBO BEHEER BV v NETHERLANDS 1994 18 EHRR 213 1993 ECHR 49

DYULDIN & KISLOV v RUSSIA 2009 48 EHRR 6 2007 ECHR 685

METALCO BT v HUNGARY 2011 STC 675 2011 ECHR 160

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 1 ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SCHED 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 1 ART 5

NIEDZWIEDZ v POLAND 2008 47 EHRR SE2

HILBE v LIECHTENSTEIN 1999 6 ECHR 453 (APPLICATION NO 31981/96)

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

PULLEN & DOUGLAS (A MINOR) v DUBLIN CITY COUNCIL 2009 2 ILRM 484 2009/47/11680

EUROPEAN CMSN FOR DEMOCRACY THROUGH LAW (VENICE CMSN) CODE OF GOOD PRACTICE ON REFERENDUMS PART I ART 2.2

EUROPEAN CMSN FOR DEMOCRACY THROUGH LAW (VENICE CMSN) CODE OF GOOD PRACTICE ON REFERENDUMS PART II ART 3.4

EUROPEAN CMSN FOR DEMOCRACY THROUGH LAW (VENICE CMSN) CODE OF GOOD PRACTICE ON REFERENDUMS EXPLANATORY MEMORANDUM PARA 25

EUROPEAN CMSN FOR DEMOCRACY THROUGH LAW (VENICE CMSN) CODE OF GOOD PRACTICE ON REFERENDUMS PART II ART 3.3

CONSTITUTION ART 29.3

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON & ORS 2002 3 IR 97

UNITED NATIONS INTERNATIONAL CONVENTION ON CIVIL & POLITICAL RIGHTS ART 26

O LAIGHLEIS, IN RE 1960 IR 93

MURPHY v M (G) & ORS 2001 4 IR 113 2003/39/9225

HORGAN v AN TAOISEACH & ORS 2003 2 IR 468 2003 2 ILRM 357 2003/26/6139

O'DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

Constitutional Rights – Amendment – Government Influence – Human Rights – Equality – Electorate – Referendum – Freedom of Expression - Incompatibility

Facts: On 10th November, 2012, a Referendum was held whereby a proposal for the deletion of Article 42.5 of the Constitution and the insertion of a new Article 42A as contained in the Thirty First Amendment of the Constitution (Children) Bill 2012, was submitted for the decision of the people. A provisional referendum certificate was published in Iris Oifigiúil dated 12th November, 2012, on 13th November which confirmed the final results of the Referendum. The results showed that 33.49% of the eligible electorate voted, 58% of those who voted, voted in favour of the proposed amendment and 42% voted against. Prior to polling day the Supreme Court in McCrystal v. Minister for Children and Youth Affairs & Ors [2012] IESC 53 ( McCrystal) had delivered a ruling on 8th November, 2012, which held that an information campaign sponsored by The Minister for Children and Youth Affairs in respect of the Children Referendum in advance of the poll constituted a clear disregard of the rights of citizens to a Referendum conducted in accordance with the norms of the democratic process mandated by the provisions of the Constitution. The information campaign commenced on 19th October, 2012 and the Minister had launched a website, conducted an advertising campaign on television, radio and in the printed media and produced a booklet said to be for the purpose of informing the electorate about the Referendum proposals. Mr. McCrystal alleged that this campaign was in clear disregard of the principles established by the Supreme Court in McKenna v. An Taoiseach (No.2) [1995] 2 I.R. 10 (McKenna (No.2)) which determined in the course of the Divorce Referendum, that the government may not spend monies to promote a result in a Referendum. The Supreme Court in McKenna (No.2) had concluded that the government funding of that campaign designed to influence voters in favour of a ‘yes’ vote was an interference with the democratic and constitutional process for the amendment of the Constitution and infringed the concept of equality which was fundamental to the democratic nature of the state. The court granted a declaration encapsulating these findings, but declined to issue an injunction. Hamilton C.J. formulated a number of remedial principles upon which the court might exercise its jurisdiction in relation to the government”s breach of the Constitution as follows: (1) The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, provided that it acts within the restraints imposed by the Constitution on the exercise of such powers; (2) If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene; (3) The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution. On 19th October, 2012, Mr. McCrystal in an ex parte application to the High Court initiated proceedings in respect of the expenditure of public funds by The Minister for Children and Youth Affairs and the government in the course of the Referendum campaign based on the McKenna principles. Evidence was adduced that the Department had allocated a budget of €3m to be spent on the Referendum. €1.9m was allocated to the Referendum Commission which had been established on 19th September, 2012, to finance the discharge of its statutory duties. The balance of €1.1m was to be used by the Department to provide information on the Referendum and encourage members of the public to vote. Mr. McCrystal claimed that the materials produced by the government tended to promote a ‘yes’ vote. She sought a declaration that the defendants had acted wrongfully and were not entitled to pursue a particular result under the guise of providing information, an injunction restraining the defendants from promoting a particular result and consequential orders in respect of the ongoing distribution of the booklets, the use of the website and the advertising campaign. In an ex tempore judgment on 1st November, Kearns P. [2012] IEHC 101 considered an extensive body of expert and other evidence submitted on affidavit, but was not satisfied to conclude that the material in question constituted a clear constitutional abuse or manifested a solicitation to vote in a particular way. That decision was subsequently appealed to the Supreme Court which commenced a hearing on the matter on 6th...