McKenna v an Taoiseach (No.1)

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1995
• Date: 01 January 1995
• Docket Number: [1992 No. 3750 P]

High Court

[1992 No. 3750 P]

McKenna v. An Taoiseach (No. 1)

In the matter of Bunreacht na hÉireann héireann, and in the matter of the Eleventh Amendment to the Constitution Bill, 1992: Patricia McKenna

Plaintiff

and

An Taoiseach and Others, Defendants (No. 1)

Cases mentioned in this report:—

The Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373..

O'Donovan v. The Attorney General [1961] I.R. 114; (1961) 96 I.L.T.R. 121.

Constitution - Amendment - Referendum - Expenditure of public funds by Government to promote particular result - Public funds not available to promote opposing view - Whether effect of such promotion a justiciable controversy - Whether objectivity of leaflet distributed by Government a justiciable controversy.

Constitution - Personal rights - Whether unenumerated rights protected by Constitution including right to oblige the Government to act in accordance with the Constitution - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 1.

Constitution - Personal rights - Right to communicate - Whether infringed by publicly funded campaign to promote particular result in referendum - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 1.

Constitution - Personal rights - Right to equality in the exercise of the franchise - Whether infringed by publicly funded campaign to promote particular result in referendum - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 1.

Constitution - Personal rights - Plaintiff asserting right to have referendum conducted in accordance with fair procedures and Constitution - Assertion of right based on assumption that Constitution requiring Government not to expend public funds in promoting particular result - Whether assumption valid - Constitution of Ireland, 1937, Article 40, s. 3, sub-s. 1.

Motion on notice.

The facts have been summarised in the headnote and fully set out in the judgment of Costello J., infra.

By plenary summons issued on the 29th May, 1992, the plaintiff sought the relief set out in the judgment of Costello J. infra. An appearance was entered on behalf of the defendants on the 2nd June, 1992. On the same day, the plaintiff issued a motion seeking injunctive relief. The motion was heard by the High Court (Costello J.) on the 4th June, 1992

The Government proposed to engage in a nation-wide advertising campaign, using public funds, to encourage a "Yes" vote in a forthcoming referendum. A leaflet which purported to be an objective summary of the consequence of the proposed amendment to the Constitution had already been distributed.

The plaintiff contended that the proposed advertising campaign would distort public debate on the issue and thus prevent the People from reaching a properly informed decision. Accordingly, she sought to restrain the advertising campaign or to compel the Government to fund a campaign in support of the opposing view. She also contended the leaflet which had already been distributed was not in fact objective. She further asserted that the advertising campaign would infringe certain of her personal rights, namely the right to oblige the Government to act in accordance with the Constitution; her right to communicate; her right to equality in the exercise of the franchise; and her right to have a decision on such an important constitutional matter arrived at by fair procedures and scrupulously in accordance with the Constitution.

Held by Costello J., in dismissing the plaintiffs claim, 1, that the courts should not adjudicate on non-justiciable issues; that the extent of the role which the Government felt called upon to play in the referendum was a matter for the executive rather than the judiciary; that the voting of monies for expenditure on information services was a matter for the Dáil rather than the judiciary; that to adjudicate on a claim that the use of public funds distorted public attitudes would involve an assessment of the effect of the campaign on public attitudes, the strength of the opposing campaign, and the forces influencing the voters' ultimate decision; and that such an assessment was not one for judges to make.

2. That it would be entirely inappropriate for the court to adjudicate on the objectivity, or otherwise, of the leaflet already distributed.

3. That there was no personal right protected by Article 40, s.3, sub-s.1 to oblige the Government to act in accordance with the Constitution; and that the right of a person with locus standi to seek relief from the courts should a Government act unconstitutionally was not affected by the acts complained of.

4. That even if the plaintiff could establish that the acts of which she complained rendered less effective the communications which she herself might wish to make to her fellow citizens, that would not involve any infringement of her constitutionally...