Re Thirty First Amdt of the Constitution (Children) Bill 2012

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date18 October 2013
Neutral Citation[2013] IEHC 458
CourtHigh Court
Date18 October 2013

[2013] IEHC 458

THE HIGH COURT

[No. 152 IA/2012]
Thirty First Amdt of the Constitution (Children) Bill 2012, In re
PETITION
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 2012, HELD ON 10 TH NOVEMBER, 2012
JOANNA JORDAN
INTENDED PETITIONER

CONSTITUTION ART 42.5

CONSTITUTION ART 42(A)

CONSTITUTION ART 46(2)

CONSTITUTION ART 46.5

CONSTITUTION ART 47.3

CONSTITUTION ART 47.4

REFERENDUM ACT 1994 S8

REFERENDUM ACT 1994 S10(1)

REFERENDUM ACT 1994 S14

REFERENDUM ACT 1994 S15

REFERENDUM ACT 1994 S18

REFERENDUM ACT 1994 S37

REFERENDUM ACT 1994 S34(3)

REFERENDUM ACT 1994 S34(1)(A)

REFERENDUM ACT 1994 S34(1)(B)

REFERENDUM ACT 1994 S34(1)(C)

REFERENDUM ACT 1994 S34(1)(D)

REFERENDUM ACT 1994 S40

REFERENDUM ACT 1994 S34

REFERENDUM ACT 1994 S40(2)

MCCRYSTAL v MIN FOR CHILDREN 2012 2 IR 726

MCKENNA v AN TAOISEACH (NO 2) 1995 2 IR 10

O'DONOVAN v AG 1961 IR 114

CONSTITUTION ART 16.2.3

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

A (S) v REFUGEE APPEAL TRIBUNAL UNREP CROSS 1.3.2012 2012/1/106 2012 IEHC 101

REFERENDUM ACT 1994 S42

RSC O.97 r3(4)

HANAFIN v MIN FOR THE ENVIRONMENT 1996 2 IR 321

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

PLANNING & DEVELOPMENT ACT 2000 S50

REFERENDUM ACT 1994 S43

HETHERINGTON v ULTRA TYRE SERVICE LTD 1993 2 IR 535

O'TOOLE v HEAVEY 1993 2 IR 544

REFERENDUM ACT 1994 S43(1)

REFERENDUM ACT 1994 S48

REFERENDUM ACT 1994 S52

CONSTITUTION ART 47.1

HANRAHAN & ORS v MERCK SHARP & DOHME 1988 ILRM 629

GELMAN & HILL DATA ANALYSTS USING REGRESSION & MULTI-LEVEL/HIERARCHICAL MODELS CAMBRIDGE UNIVERSITY PRESS 2006 CH 20

HEATH SEDUCING THE SUBCONSCIOUS - THE PSYCHOLOGICAL OF EMOTIONAL INFLUENCE IN ADVERTISING WILEY 2012

FITZGIBBON v IRELAND & AG UNREP SUPREME 8.6.2001 2001/9/2499

SLATTERY v AN TAOISEACH 1993 1 IR 286

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

ELECTIONS AND REFERENDA

Referendum

Petition - Annulment of referendum result - Information campaign - Public funding - Whether referendum poll materially affected by information campaign - Whether leave ought to be granted to bring petition - Whether prima facie case made out - Whether bona fide issue to be tried - Onus of proof - Standard of proof - Material affect - Whether referendum petition proceedings ought to be conducted in inquisitorial nature - Whether result of referendum as a whole materially affected by unlawful conduct - Whether onus of proof ought to be reversed - Whether change in polling following information campaign - Whether Government ministers sought to obfuscate effect of Supreme Court ruling concerning information campaign prior to referendum - Hanafin v Minister for the Environment [1996] 2 IR 321 applied - McCrystal v Minister for Children [2012] IESC 53, [2012] 2 IR 726; McKenna v An Taoiseach (No 2) [1995] 2 IR 10; O'Donovan v AG [1961] IR 114; SA v Refugee Appeals Tribunal [2012] IEHC 101, (Unrep, Cross J, 1/3/2012); Hetherington v Ultra Tyre Service Ltd [1993] 2 IR 535; O'Toole v Heavey [1993] 2 IR 544; Hanrahan v Merck Sharpe & Dohme [1988] ILRM 629 and Fitzgibbon v Ireland (Unrep, SC, 8/6/2001) considered - Rules of the Superior Courts 1986 (SI 15/1986), O97 - Referendum Act 1994 (No 12), ss 8, 10, 14, 15, 18, 34, 37, 40, 42, 43, 48 and 52 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Planning and Development Act 2000 (No 30), s 50 - Constitution of Ireland 1937, arts 16, 40, 42, 46 and 47 - European Convention on Human Rights and Fundamental Freedoms 1950, arts 6, 10, 13 and 14 - Leave granted; petition dismissed (2012/152IA - McDermott J - 18/10/2013) [2013] IEHC 458

In re the Referendum on the Proposal for the Amendment of the Constitution contained in the Thirty-First Amendment of the Constitution (Children) Bill 2012

Facts: On the 10th November 2012, a referendum was held in Ireland on whether Article 42.5 of the Constitution of Ireland should be deleted and effectively replaced with the insertion of a new Article 42A as contained in the Thirty First Amendment of the Constitution (Children) Bill 2012. 33.49% of the eligible electorate voted in the referendum, with 58% of voters in favour of the proposed amendment and 42% voted against. The petitioner brought an application for leave to present a petition contending that the Minister for the Environment, Community and Local Government (‘the Minister’) and the Government had, in breach of the Constitution, used public funding to espouse a particular viewpoint (i.e. for voters to vote ‘Yes’ in the referendum), which had a material effect on the referendum outcome. The petitioner cited a booklet, a website and advertisements that were published and circulated by or on behalf of the Government as evidence of this. On the 8th November 2012, the Supreme Court in McCrystal v. Minister for Children and Youth Affairs & Ors [2012] IESC 53 ruled that sections of these materials amounted to breaches of the Constitution; nevertheless, the referendum went ahead two days later as scheduled.

The respondent argued that the Court did not have to set aside the referendum result because of the ruling in McCrystal. It was argued that such action should not be taken because the referendum proposal had been carried by a significant majority and because significant opinion polls held since 2011 consistently indicated that the majority of participants were in favour of such an amendment to the Constitution. It was also pointed out that all of the main political parties and every member of the Dáil and Seanad, save one, were in favour of this amendment. Finally, it was suggested that polling data indicated that the Government campaign had not had an appreciable effect on the outcome of the referendum and that the reporting of McCrystal decision would have actually been of benefit to the ‘No’ campaign. On the basis of the above, it was argued that the actions of the Government did not have a materially effect on the outcome of the Referendum.

Held by McDermott J that an application for leave to present a petition under s. 42 of the Referendum Act 1994 required the applicant to satisfy the court that there was prima facie evidence of a matter referred to in s. 43 (which includes unconstitutional conduct by the Government). It was said that because of the judgment in McCrystal, there was clear prima facie evidence that the Government unconstitutionally interfered with the conduct of the Referendum. It was further held that based on the evidence before the Court, there was prima facie evidence that the Government”s actions materially affected the Referendum result as a whole. Leave was therefore granted to the petitioner to bring the petition.

The petition was then considered by McDermott J. Similarly to the leave stage, the petitioner had to show that the Government actions in running an information campaign for the upcoming Referendum amounted to breaches of the Constitution and that this action materially affected the Referendum result as a whole. However, at this stage, the petitioner was required to prove both of these elements on the balance of probabilities. McDermott J had no doubt that certain actions of the Government amounted to breaches of the Constitution as a result of the Supreme Court ruling in McCrystal. However, on consideration of the evidence before the Court and the submissions made by the parties, it was held that he was not satisfied on the balance of probabilities that the unconstitutional actions of the Government materially affected the outcome of the Referendum, especially in light of the McCrystal ruling which was widely reported and could only have been of benefit to the ‘No’ campaign. Indeed, there was clear evidence that the Government moved to minimise as much as possible the effect of the information campaign by immediately cancelling advertisements, taking the website offline, and ceasing to publish and distribute booklets.

Petition dismissed

1

JUDGMENT of Mr. Justice McDermott delivered on the 18th day of October, 2013

2

1. On 10 th November, 2012, a Referendum was held whereby a proposal for the deletion of Article 42.5 of the Constitution and the insertion of a new Article 42A as contained in the Thirty First Amendment of the Constitution (Children) Bill 2012, was submitted for the decision of the people.

3

2. The Referendum Returning Officer published a provisional Referendum Certificate in Iris Oifigiúil dated 12 th November, 2012, on 13 th November which confirmed the final results of the Referendum. This certificate was prepared from the reports submitted by the several local Returning Officers in all of the constituencies in the State which set out the following overall result:-

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2 "2 (a) The total number of votes recorded at the Referendum in favour of the proposal was [615,731]

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(b) The total number of votes recorded at the Referendum against the proposal was [445,863]

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3. A majority of the votes recorded at the Referendum was recorded in favour of the proposal."

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The result indicates that 33.49% of the eligible electorate voted, 58% of those who voted, voted in favour of the proposed amendment and 42% voted against.

Amending the Constitution
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3.Article 46(2) of the Constitution provides that:-

"Every proposal for an amendment of this Constitution shall be initiated in Dáil 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."

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Article 46.5 provides:-

"A...

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