Jordan v Minister for Children and Youth Affairs

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin,Denham C.J.
• Judgment Date: 24 April 2015
• Neutral Citation: [2015] IESC 33
• Court: Supreme Court
• Docket Number: [S.C. Nos. 432 of 2013, 342 of 2014 and 361 of 2014],[Appeal No. 432/13]
• Date: 24 April 2015

In the Matter of the Referendum on the Proposal for the Amendment of the Constitution contained in the Thirty-First Amendment of the Constitution (Children) Bill held on the 10th November 2012

Between

Joanna Jordan

Petitioner/Appellant

and

The Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General

Notice Parties/Respondents

Between

Joanna Jordan

Plaintiff/Appellant

and

The Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General

Defendants/Respondents

[2015] IESC 33

Denham CJ

Hardiman J

O'Donnell J

Clarke J

MacMenamin J

Laffoy J

Dunne J

[Appeal No. 432/13]

[Appeal No. 342/2014]

THE SUPREME COURT

Constitutional rights – Separation of powers – Legislative power – Appellant seeking to challenge a provisional referendum certificate – Whether appellant is required to demonstrate material effect on the result of the referendum

Facts: The petitioner/appellant, Ms Jordan, in the context of a contentious campaign in respect of the Fifteenth Amendment of the Constitution Act 1995 providing for the dissolution of marriage in certain specified circumstances, adopted in June 1996 and known as the “Divorce Referendum”, challenged the provisional referendum certificate by petition. She also commenced parallel plenary proceedings contending that if the Referendum Act 1994 was to be interpreted as imposing upon her the burden of demonstrating that the outcome of the referendum was altered by virtue of the unconstitutional information campaign, then in the light of Hanafin v The Minister for Environment & Ors [1996] 2 IR 321, such a burden was impossible to discharge, and the Act if so interpreted would be unconstitutional. The trial judge did not accept that the petitioner’s evidence had demonstrated a material effect on the outcome in the sense of demonstrating that without a government information campaign the amendment would have been rejected. The High Court, in its judgment on the petition delivered in October 2013 ([2013] IEHC 458), held that there was a prima facie case pursuant to s.42 of the 1994 Act and accordingly granted leave to the plaintiff to present the petition, but dismissed the petition on the merits. In June 2014, having heard further argument on the constitutional issue, the trial judge delivered a further comprehensive judgment dismissing that claim ([2014] IEHC 327). In the Supreme Court, the appellant argued that Hanafin was wrongly decided and should not be followed. It was argued that on a true construction of the 1994 Act, the petitioner was not required to demonstrate material effect on the result of the referendum as a whole. The petitioner also argued that either the test of material effect on the result of the outcome should not be interpreted to mean a different result would have ensued, or that on proof of an unconstitutional interference with a referendum the onus should shift to the respondents (the Minister for Children and Youth Affairs, the Government of Ireland, Ireland and the Attorney General), either as a matter of law or because it was essentially a matter within the power of the State to prove, to demonstrate that there had been no material effect on the outcome. It was also argued that the trial should have been conducted as an inquiry with no onus of proof on the petitioner.

Held by O'Donnell J that the 1994 Act should properly be interpreted as requiring that in order to succeed, a petitioner must establish not just an irregularity or defect or other matter set out in s.43, but also that the referendum as a whole was affected materially thereby; this must be established on a prima facie basis to obtain leave and on the balance of probabilities at the full hearing of the petition. O’Donnell J did not think that there could be any substance in the petitioner’s contention that the date of the referendum ought to have been postponed. O’Donnell J held that material effect on the outcome of a referendum involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. O’Donnell J acknowledged that the trial judge applying Hanafin at times relied on the evidence as to the lack of data, and also that it was necessary to prove that the constitutional interference produced a majority in favour of the proposal. However O’Donnell J held it to be clear that the trial judge considered that the evidence fell well short of this standard and was wholly insufficient to establish the petitioner’s case on any test, and O’Donnell J considered this conclusion to be entirely correct.

O'Donnell J held that he would accordingly dismiss the appeal on both the petition and the plenary proceedings. The result was that the provisional outcome of the referendum became final and the amendment voted on by the people in November 2012 became part of the Constitution.

Appeals dismissed.

Judgment delivered on the 24th April, 2015 by Denham C.J.

1 Joanna Jordan, the appellant, and referred to as “the appellant”, brought two appeals to this Court, one from a judgment of the High Court delivered on the 18th October, 2013, [2013] IEHC 458, and another from a judgment of the High Court delivered on the 20th June, 2014, [2014] IEHC 327, in proceedings brought in relation to a provisional referendum certificate and a plenary summons, respectively. The respondents, the Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General, are referred to collectively as “the Minister”.

2 In these appeals a constitutional balance is required in circumstances where it has been held that there has been a breach of the McKenna principles laid down by this Court by the Minister, see McCrystal v. The Minister for Children and Youth Affairs & Ors [2012] 2 I.R. 726, and there has been an exercise in popular sovereignty in a referendum by the People. A harmonious balance is sought between the competing constitutional principles and rights.

Background facts

3 On the 8th November, 2012, in McCrystal v. The Minister for Children and Youth Affairs & Ors [2012] 2 I.R. 726, the Court held that the Minister had acted in breach of the McKenna principles in publishing the material in issue, prior to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012.

Publication of the material ceased at that time.

4 On the 10th November, 2012, a referendum was held on whether Article 42.5 of the Constitution of Ireland should be deleted and replaced with the insertion of a new Article 42A as contained in the Thirty First Amendment of the Constitution (Children) Bill, 2012.

5 In the referendum 33.49% of the eligible electorate voted. 58% of those who voted, voted in favour of the proposed amendment. 42% of those who voted, voted against the proposed amendment.

6 A provisional referendum certificate dated 12th November, 2012, was published in Iris Oifigiúil on the 13th November, 2012.

7 The appellant commenced two proceedings in the High Court.

8 The appellant had a plenary summons issued on the 19th November, 2012, against the Minister. The appellant sought a number of remedies, including: a declaration that the provisions of ss. 42(3) and 43 of the Referendum Act, 1994, are invalid, having regard to the Constitution; a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003, that the provisions of ss. 42(3) and 43 of the Referendum Act, 1994, are incompatible with the European Convention on Human Rights; that the Minister had acted in breach of the appellant's rights pursuant to the Constitution, in particular the preamble, Articles 5, 6, 11, 16, 17, 28, 29, 34, 40, 41, 42, 46 and 47; and, that the State had acted in breach of the appellant's rights pursuant to the European Convention on Human Rights, in particular Articles 6, 10, 13 and 14 thereof.

9 On the 21st November, 2012, the appellant sought leave to present a petition pursuant to s. 42 of the Referendum Act, 1994, in respect of the referendum on the proposed amendment of the Constitution in the Thirty First Amendment of the Constitution (Children) Bill, 2012, held on the 10th November, 2012. The application was adjourned until the 16th April, 2013.

10 The application for leave in relation to the petition was heard over 14 days in April and May 2013.

11 By agreement, and at the direction of the High Court, the evidence adduced by the appellant was considered for the purpose of both proceedings.

High Court judgments

12 In a judgment delivered on the 18th October, 2013, [2013] IEHC 458, the High Court (McDermott J.) held, on the basis of the findings of the Supreme Court in McCrystal, and the evidence adduced in the course of the proceedings, that the appellant had established a “prima facie case” pursuant to s.42 of the Referendum Act, 1994, and granted leave to the appellant to present the petition.

13 The Court went on to hold, however, that it was not satisfied on the balance of probabilities, that the appellant had succeeded in adducing cogent and reliable evidence to establish that the result of the referendum as a whole was materially affected by the unconstitutional wrongdoing. As such, the trial judge was satisfied that there was no legal or evidential basis upon which to annul the referendum certificate, and he dismissed the petition.

14 On the 20th June, 2014, [2014] IEHC 327, the High Court delivered a judgment in relation to the plenary summons which had been issued by the appellant. The trial judge held that the provisions of ss.42 and 43 embody a rational and proportional onus and standard of proof which may, on occasion, be difficult to discharge, but are not inherently impossible to discharge. It was held by the trial judge that the onus and standard of proof are such that the principle of the freely exercised power of each...