Jordan v Ireland, The Attorney General and The Referendum Returning Officer

JurisdictionIreland
JudgeClarke C.J.,O'Donnell J.,Charleton J.
Judgment Date07 September 2018
Neutral Citation[2018] IESCDET 124
CourtSupreme Court
Date07 September 2018

[2018] IESCDET 124

THE SUPREME COURT

DETERMINATION

Clarke C.J.

O'Donnell J.

Charleton J.

BETWEEN
JOANNA JORDAN
APPLICANT
AND
IRELAND, THE ATTORNEY GENERAL

AND

THE REFERENDUM RETURNING OFFICER
RESPONDENTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal
DATE OF JUDGMENT OR RULING: 27 th August 2018
DATE OF ORDER: 27 th August 2018
DATE OF PERFECTION OF ORDER: 27 th August 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 31 st August 2018 AND WAS IN TIME.
General Considerations
1

The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2

Furthermore the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3

In that context it should be noted that the respondents oppose the grant of leave.

Decision
4

The background to this application is as follows. The applicant (‘Ms. Jordan’) applied to the High Court for leave to present a referendum petition under Part IV of the Referendum Act 1994 in order to challenge the validity of the provisional referendum certificate published in relation to the referendum on the Thirty-Sixth Amendment of the Constitution Bill 2018.

5

The High Court (Kelly P.) gave its decision on the 20 th July 2018, and refused to grant leave to Ms. Jordan ( Jordan v. Ireland [2018] IEHC 438). Ms. Jordan appealed the decision of the High Court to the Court of Appeal. Birmingham P. delivered the judgment of the Court of Appeal (Irvine and Hogan JJ. agreeing) on the 27 th August 2018, dismissing Ms. Jordan's appeal.

6

Before going on to consider the arguments raised by Ms. Jordan in her application for leave, it is necessary to say something about stateability. In this regard, reference might be made to the determination of this Court in Walshe v. Ireland and ors [2015] IESCDET 37. That determination concerned an application for leave to appeal from a decision of the Court of Appeal upholding a refusal by the High Court to grant leave to bring a referendum petition in relation to the referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015. This Court refused leave to appeal from the decision of the Court of Appeal in that case on the following basis:-

‘While the passage of a referendum proposal is a matter of considerable importance, the Court is satisfied that the decision of the Court of Appeal to dismiss the appeal from the refusal of the High Court to grant leave to issue a referendum petition does not involve any matter of general public importance.

The decision of the Court of Appeal was the application of the principles of law set out in McCrystal v. Minister for Children and Youth Affairs [2012] IESC 53 and Jordan v. Minister...

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