McKenna v an Taoiseach (No. 2)

CourtSupreme Court
Judgment Date01 January 1996
Date01 January 1996
McKenna v. An Taoiseach (No. 2)
In the matter of Bunreacht na hÉireann: héireann: Patricia McKenna
An Taoiseach and Others, Defendants (No. 2) [S.C. Nos. 361 and 366 of 1995]

High Court

Supreme Court

Constitution - Amendment - Referendum - Role of Government - Government using public funds to promote particular outcome - Matching funds not made available to other side - No express constitutional or statutory provision authorising such expenditure - Whether such expenditure unconstitutional - Whether courts having jurisdiction to restrain such expenditure - Whether Government entitled to campaign for particular outcome by means not involving use of public funds - Constitution of Ireland, 1937, Article 40, ss. 1 and 3, and Articles 46 and 47.

Constitution - Personal rights of citizen - Right to equality - Right to fair procedures - Right to equality in exercise of franchise - Right to democratic process - Whether infringed by use of public funds to promote particular outcome in referendum without provision of matching funds to promote alternative view - Constitution of Ireland, 1937, Article 40, s.1.

Constitution - Separation of powers - Public expenditure - Whether courts having jurisdiction in relation to expenditure voted by Dáil Éireann éireann in accordance with Constitution - Constitution of Ireland, 1937, Articles 17 and 28.

Article 46, s.2 of the Constitution of Ireland, 1937, provides:—

"Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum."

Article 28 of the Constitution provides that the executive power of the State shall be exercised by or on the authority of the Government; that the Government shall be responsible to Dáil Éireann; éireann; and that the Government shall prepare estimates of the receipts and expenditure of the State for each financial year, and present them to Dáil Éireann éireann for consideration. Article 17, s. 2 provides for Dáil Éireann éireann to pass votes or resolutions and to enact laws for the appropriation of public moneys, on the recommendation of the Government.

Section 22 of the Referendum Act, 1994, provides that a Bill which is the subject of a referendum must be made available for inspection and purchase at post offices; and s. 23 provides for the issue of a statement for the information of voters, approved by the Dáil and Seanad, regarding the proposal the subject of the referendum.

Dáil Éireann éireann voted £500,000 to the Minister for Equality and Law Reform, to be used for a publicity campaign to encourage a "Yes" vote in a forthcoming referendum on the removal of the constitutional prohibition on divorce.

The plaintiff sought an interlocutory injunction restraining the use of public funds to promote a "Yes" vote; or the provision of public funds to promote a "No" vote.

The plaintiff contended that once a Bill containing a proposal for the amendment of the Constitution had been passed by the Oireachtas, the Government's sole function was to provide the machinery for the holding of the necessary referendum; and that the use by the Government of public funds to promote a particular outcome went beyond that role and infringed the procedure laid down by Articles 46 and 47 for the amendment of the Constitution, which entrusted the decision exclusively to the People. It was also contended that the expenditure infringed the plaintiff's personal rights as a citizen. Alternatively, it was submitted that if public funds were used to promote a particular outcome, then the Constitution required that matching funds be made available to those opposing the amendment.

The defendants contended that they were obliged to promote their view that the Constitution be amended; and that this could only be done by the use of public funds. It was further argued that it would be an infringement of the doctrine of the separation of powers for the courts to review expenditure approved by Dáil Éireann éireann in accordance with the procedure laid down by the Constitution. The defendants also challenged the standing of the plaintiff to institute and maintain the proceedings.

By consent the hearing of the motion was treated as the trial of the action.

Held by Keane J., in dismissing the plaintiff's claim, 1, that the plaintiff did have locus standi to institute and maintain the proceedings.

Crotty v. An Taoiseach [1987] I.R. 713 applied; Cahill v. Sutton[1980] I.R. 289distinguished.

2. That Articles 17 and 28 of the Constitution were at the heart of the parliamentary democracy inherited by the State, in recognising the primary role of the executive and the elected assembly to which it was responsible in the raising and expenditure of monies; and that for the courts to review decisions in this area by the Government or Dáil Éireann éireann would be to assume a role which was exclusively entrusted to those organs of state, and one which the courts were conspicuously ill-equipped to undertake.

McKenna v. An Taoiseach (No. 1) [1995] 2 I.R. 1 applied; Baker v. Carr (1962) 369 U.S. 186 approved in part.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Blayney and Denham JJ., Egan J. dissenting), in allowing the plaintiff's appeal and granting declaratory relief, 1, (Egan J. concurring) that the plaintiff did have locus standi.

2. That the Government, in expending public moneys in the promotion of a particular result, was acting in breach of the Constitution.

Per Hamilton C.J., O'Flaherty and Denham JJ.: That such expenditure was a breach of the constitutional right to equality.

Per Hamilton C.J.: That such expenditure was also a breach of the democratic process and the constitutional process for the amendment of the Constitution, which required not only compliance with Articles 46 and 47 of the Constitution, but also that regard be had for the constitutional rights of the citizen and the adoption of fair procedures.

Per O'Flaherty J.: That such expenditure also had the effect of putting the voting rights of those citizens in favour of the amendment above the voting rights of those citizens opposed to it.

Per Blayney J.: That the constitutional requirement that a proposal for the amendment of the Constitution be submitted to the People must be construed as providing for fair procedures; and that in expending public monies in the promotion of a particular result, the Government had failed to act fairly, in that it had favoured one section of the People at the expense of another.

Glover v. BLN Ltd. [1973] I.R. 338 applied.

Per Denham J.: That such expenditure as well as representing a breach of the constitutional right to equality also represented an infringement of the constitutional right to freedom of expression and the constitutional right to a democratic process in referenda.

Per Egan J., dissenting: That there was no specific prohibition in the Constitution or the Act of 1994 on such expenditure; that Dáil Éireann éireann, in voting the monies to the Minister for Equality and Law Reform, had not directed that they be applied in any particular manner other than in connection with the referendum; and that accordingly, it was a matter solely for the executive arm of government to decide how the money should be so expended.

3. That the Court had jurisdiction to act in relation to the Government's breach of the Constitution.

Per Hamilton C.J. and Blayney J.: That in relation to the Court's jurisdiction, the following principles applied:—

  • (a) The courts had no power, express or implied, to supervise or interfere with the exercise by the Government of its executive functions, provided that it had acted within the restraints imposed by the Constitution on the exercise of such powers;

  • (b) If, however, the Government acted otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts were not only entitled but obliged to intervene;

  • (c) The courts were only entitled to intervene if the circumstances were such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.

Boland v. An Taoiseach [1974] I.R. 338 and Crotty v. An Taoiseach[1987] I.R. 713 applied.

Per Hamilton C.J.: That in expending monies in the manner impugned, the Government had not been acting in pursuance of the executive power of the State; but that this did not of itself make the acts unlawful.

Per O'Flaherty and Egan JJ.: That the Government was entitled to campaign for a"Yes" vote by methods other than the expenditure of public funds.

Per O'Flaherty J.: That the prohibition on the use of public funds did not mean that Government Ministers were not entitled to use their State transport in relation to the referendum; or to avail of the media to put forward their point of view.

Per Denham J.: That the Government had a right and duty to give information, to clarify situations, to give explanations and to deal with unforeseen matters and emergencies.

Cases referred to in this report:—

Abood v. Detroit Board of Education (1977) 431 U.S. 209.

Amalgamated Society of Railway Servants v. Osborne [1910] A.C. 87.

Baker v. Carr (1962) 369 U.S. 186.

Boland v. An Taoiseach [1974] I.R. 338; (1974) 109 I.L.T.R. 13.

Buckley v. Valeo (1976) 424 U.S. 1.

Byrne v. Ireland [1972] I.R. 241.

Cahill v. Sutton [1980] I.R. 289.

Cashman v. Clifford [1989] I.R. 121; [1990] I.L.R.M. 200.

Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.

Duggan v. An Taoiseach [1989] I.L.R.M. 710.

Educational Company of Ireland v. Fitzpatrick (No. 2) [1961] I.R. 345; (1961) 97 I.L.T.R. 16.

Finn v. The Attorney General [1983] I.R. 154.

Glover v. B.L.N. Ltd. [1973] I.R. 388.

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