Jordan v Ireland

CourtCourt of Appeal (Ireland)
JudgeBirmingham P.
Judgment Date27 August 2018
Neutral Citation[2018] IECA 291
Docket Number[C.A. No. 316 of 2018],[2018 No. 316]
Date27 August 2018

[2018] IECA 291


The Court

Birmingham P.

Irvine J.

Hogan J.

[2018 No. 316]



ON THE 25th DAY OF MAY 2018





Referendum – Constitutional change – Electoral Register – Appellant seeking leave to present a petition – Whether the Government and individual Ministers acted unconstitutionally

Facts: The appellant, Ms Jordan, appealed to the Court of Appeal from a decision of the High Court (Kelly P) of 20th July 2018 refusing to grant her leave to present a petition pursuant to the provisions of s. 42 of the Referendum Act 1994, seeking to have declared null and void a Provisional Referendum Certificate signed on 28th May 2018 and which was published in Iris Oifigiúil on 29th May 2018.

Held by Birmingham P that it was not a breach of the Executive's duty to uphold the Constitution by campaigning for constitutional change since a mechanism for constitutional change is itself provided for in the Constitution. Birmingham P held that the applicant had advanced no sustainable argument or evidence to demonstrate that the effect of any supposed irregularities in relation to the Electoral Register could possibly have affected the result. The Court considered that Kelly P was entirely correct in refusing leave to present the petition and held that the presentation of the petition in the circumstances amounted to a frustration of the democratic process in relation to referendums as envisaged by Articles 5, 46 and 47 of the Constitution and, as such, might well in other circumstances amount to an abuse of process.

Birmingham P held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Birmingham P. on 27th day of August 2018

This is an appeal from a decision of the High Court (Kelly P.) of 20th July 2018: see Jordan v. Ireland [2018] IEHC 438. In that judgment. Kelly P. refused to grant leave to the applicant, Ms. Jordan, to present a petition pursuant to the provisions of s. 42 of the Referendum Act 1994 ('the 1994 Act'), seeking to have declared null and void a Provisional Referendum Certificate signed on 28th May 2018 and which was published in Iris Oifigiúil on 29th May 2018. Ms. Jordan has now appealed to this Court against that decision.


By way of background, it should be explained that the 36th Amendment of Constitution Bill 2018 was passed by both Houses of the Oireachtas on 28th March 2018. The principal object of this Bill was to propose that the existing provisions of Article 40.3.3 of the Constitution protecting the right to life of the unborn should be deleted and replaced with a new provision giving the Oireachtas a general power to legislate for the termination of pregnancy. A Polling Day Order was then made by the Minister for Housing, Planning and Local Government which fixed 25th May 2018 as the polling date. The referendum took place that day and the count was carried out on the following day.


On 26th May 2018, the Referendum Returning Officer declared a total poll of 2,159,655 votes. There were 6,042 invalid ballot papers, giving a total valid poll of 2,153,613. The number of votes in favour of the proposal was 1,429,981 and the number of votes against was 723,632. There was, accordingly, a majority of votes in favour of the proposal of 706,349. The Provisional Referendum Certificate was prepared and signed on Monday 28th May 2018 and was published in Iris Oifigiúil on Tuesday 29th May 2018.


As we have just indicated, the issue on which the People were called upon to vote was whether the existing Article 40.3.3 should be deleted and replaced with a new version of that sub-Article. Article 40.3.3 currently reads as follows:

'The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.'


The referendum proposal, if passed, would see the deletion of the present Article 40.3.3 and its replacement by the following provision:

'Provision may be made by law for the regulation of termination of pregnancy.'


In the High Court, Ms. Jordan's application was heard in conjunction with and consecutive to an application for leave to issue a petition brought by a Mr. Charles Byrne: see Byrne v. Ireland [2018] IEHC 437. In the High Court, Ms. Jordan raised two issues: the first concerned the involvement of the Minister for Health in the "Yes" campaign and the very prominent role played by him in the course of that campaign, and the second raised issues concerning the Register of Electors.


It is to be noted that the issue in relation to the role of the Minister for Health has not been raised as a ground of appeal, nor did it feature in the written or oral submissions. However, for completeness, it should be explained that in the High Court, Ms. Jordan contended that there was:

'. . a fundamental conflict between the campaign role and the Minister's duties and responsibilities of office. In office, he is responsible for the initiation, direction and control of health policies, services and facilities ... the roles of office holder and campaigner became conflated when the Minister participated in the national "Doctors for Yes" event held on Saturday 12th May 2018 when, in the course of that event, he discussed with journalists present the recent cervical cancer issues ... was a clear example of the Minister for Health, he quite clearly could be mistaken for the chief proponent of "Yes" campaign and the other way round, the opposite also applying, that for a voter, a confusion was being created as to who was speaking.'


Ms. Jordan contended that the Minister's actions throughout the period of the campaign amounted to unlawful interference with the conduct of the referendum so as to affect materially the result of that referendum.

The Judgment of the High Court

In the High Court, Kelly P. concluded that the Minister for Health (Mr. S. Harris TD) was entitled to campaign for a Yes vote. In that context, he referred to remarks made by Denham C.J. in McCrystal v. Minister for Children and Youth Affairs [2012] IESC 53 [2012] 2 I.R. 726. Kelly P. observed, by reference to earlier authorities, that Mr. Harris was entitled to use State transport in the course of the referendum; that he was entitled to be paid a salary as a Minister even though he was campaigning for a Yes vote and he was entitled to answer questions put to him concerning other topical issues, such as the cervical cancer screening difficulty which arose during the campaign. Again, as Minister, he was entitled to indicate departmental policy on issues falling within his brief, whether in relation to the provisions of free contraceptives, or, in the event of the referendum passing, whether abortions would be provided at State expense.


Kelly P. was of the view that there was no conflict or illegality in the Minister for Health continuing to discharge his ministerial function in all its aspects and advocating for a Yes vote. He was not satisfied that Ms. Jordan had demonstrated prima facie evidence of any of the matters specified in s. 43 of the 1994 Act, and, in particular, had not demonstrated any irregularity in the conduct of the referendum as that term was interpreted by the Supreme Court in Hanafin v. Minister for Environment [1996] 2 I.R. 321. He went on to say that even if he was wrong in that view, there was no evidence, even of a prima facie nature, that such activity materially affected the result of the referendum as a whole as is required by s.42 (3) (b) of the 1994 Act.


It was for these reasons that Kelly P. refused to grant the applicant the leave which she sought. I propose to consider presently the various grounds advanced by the applicant, both in the High Court and in this Court. It is, however, first necessary to consider the applicable test governing the grant of leave in a case of this kind.

The Test Governing the Grant of Leave

As this Court has frequently had occasion to remark in, admittedly, a variety of contexts quite different to this one, the Constitution created a democratic state based upon the rule of law: see Article 5. As the provisions of Article 15, Article 16 and Article 28 of the Constitution further make clear, the State is principally a parliamentary democracy in respect of which the Government is democratically accountable to Dáil Éireann (Article 28.4) and where a freely elected Oireachtas enacts legislative measures. But the State is also, at least in some respects, a plebiscitary democracy because, as Article 6 makes clear, it is the People's right 'in final appeal' to decide all questions of national policy. In the context of a constitutional amendment, this popular sovereignty is ordained by Article 47.1 which provides that the amendment in question shall be 'held to have been approved by the people' if the majority of the votes cast at the referendum 'shall have been cast in favour of its enactment into law.'


In a case such as the present one, the Court's task is, accordingly, to harken to the authentic voice of the People as expressed in the referendum and, absent cogent evidence of obstruction, non-compliance, mistake or irregularity such as might materially affect the result for the purposes of s....

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