Riordan v Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 14 February 2002
• Neutral Citation: [2002] IEHC 42
• Court: High Court
• Docket Number: 63 JR/2002
• Date: 14 February 2002

[2002] IEHC 42

THE HIGH COURT

63 JR/2002

RIORDAN v. IRELAND & ORS

JUDICIAL REVIEW

BETWEEN

DENIS RIORDAN

APPLICANT

AND

GOVERNMENT OF IRELAND, AN TAOISEACH, MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, DÁIL ÉIREANN, SEANAD ÉIREANN, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

CONSTITUTION ART 15

CONSTITUTION ART 26

CONSTITUTION ART 27

CONSTITUTION ART 40

CONSTITUTION ART 46

CONSTITUTION ART 40.3.4

CONSTITUTION ART 40.3.5

AG V X 1992 1 IR 1

OFFENCES AGAINST THE PERSON ACT 1861 S58

OFFENCES AGAINST THE PERSON ACT 1861 S59

TWENTY-FIFTH AMENDMENT TO THE CONSTITUTION (PROTECTION OF HUMAN LIFE IN PREGNANCY) BILL 2001 S1

TWENTY-FIFTH AMENDMENT TO THE CONSTITUTION (PROTECTION OF HUMAN LIFE IN PREGNANCY) BILL 2001 S1(2)

TWENTY-FIFTH AMENDMENT TO THE CONSTITUTION (PROTECTION OF HUMAN LIFE IN PREGNANCY) BILL 2001 S2

TWENTY-FIFTH AMENDMENT TO THE CONSTITUTION (PROTECTION OF HUMAN LIFE IN PREGNANCY) BILL 2001 S3

TWENTY-FIFTH AMENDMENT TO THE CONSTITUTION (PROTECTION OF HUMAN LIFE IN PREGNANCY) BILL 2001 S4

CONSTITUTION ART 15.5.2

G V DPP 1994 1 IR 374

RSC O.84 r21

R V INLAND REVENUE CMRS EX PARTE NATIONAL FEDERATION OF SELF EMPLOYED AND SMALL BUSINESS LTD 1982 AC 617

MASS ENERGY LTD V BIRMINGHAM CITY COUNCIL 1994 ENV LR 298

R V COTSWOLD DISTRICT COUNCIL EX PARTE BARRINGTON PARISH COUNCIL 75 P & CR 515

GORMAN & NATIONAL TAXI DRIVERS UNION V MIN FOR ENVIRONMENT & ORS 2001 1 IR 306

HALPIN V WICKLOW CO COUNCIL UNREP O'SULLIVAN 15.3.2001 2001/11/3143

GILLIGAN V GOVERNOR OF PORTLAOISE PRISON & ORS UNREP MCKECHNIE 12.4.2001 2001/10/2728

CONSTITUTION ART 51

ROCHE V IRELAND & MIN FOR ENVIRONMENT UNREP CARROLL 16.6.1983 1983/12/3510

FINN V MIN FOR ENVIRONMENT 1983 IR 154

SLATTERY V AN TAOISEACH 1993 IR 286

RIORDAN V AN TAOISEACH 1999 4 IR 321

CONSTITUTION ART 41.3.2

RIORDAN V AN TAOISEACH 1999 4 IR 343

CONSTITUTION ART 29

CONSTITUTION ART 47.3

CONSTITUTION ART 16.1.2

MORRIS & NI MHAOLDOMNAIGH V MIN FOR ENVIRONMENT UNREP KELLY 1.2.2002

CONSTITUTION ART 20

CONSTITUTION ART 25

CONSTITUTION ART 28

CONSTITUTION ART 25.1

CONSTITUTION ART 40.3

Synopsis:

CONSTITUTIONAL LAW

Judicial review

Separation of powers - Abortion referendum - Whether proposed Bill repugnant to Constitution - Jurisdiction of courts - Burden of proof -Whether High Court possessed jurisdiction to review Bill - Whether failure by Oireachtas to adhere to constitutional procedures - Twenty-fifth Amendment to the Constitution (Protection of Human Life in Pregnancy) Bill, 2001 - Bunreacht na hÉireann, 1937 article 36 (63/2002JR - McKechnie J - 14/02/2002)

Riordan v Government of Ireland

Facts: The applicant sought leave to bring judicial review proceedings in respect of the Twenty-fifth Amendment to the Constitution (Protection of Human Life in Pregnancy) Bill, 2001 (“the Bill”) claiming that the same was repugnant to the Constitution. In addition the applicant sought declarations relating to the appointment of a Minister of the State. The applicant alleged that if passed into law, the Bill would result in the Constitution being mutilated, that the Oireachtas was specifically prohibited from enacting into law the said proposals as set forth in the second schedule, that in passing the Twenty Fifth Amendment Bill both Houses of the Oireachtas acted unreasonably, negligently, deceptively, and ultra vires and that, if the proposed constitutional amendment should be made unconditional, it would not reverse the decision of the Supreme Court in the “X” Case.

Held by Mr. Justice McKechnie in refusing leave. The intention of the proposed amendment, if passed, was that the proposal in the second schedule should be considered, and if thought fit passed by both Houses of the Oireachtas within the time specified. If that happened, the amendment as contained in the Bill then became unconditional. If, at the end of 180 days there should not exist the Protection of Human Life in Pregnancy Act, 2002 then subject to certain observations the inserted section 6 to Article 46 would cease to have effect. In principle, there was no difference between the conditional aspect of the Twenty Fifth Amendment and the conditional aspect of the Nineteenth Amendment. There was no difference which would justify the Court in attempting to distinguish Riordan (No.2) [1999] 4 IR 343 from the case in hand. There was a very clear distinction between the Twenty Fifth Amendment Bill and the second schedule. If passed in accordance with Article 47 and the relevant provisions of the Referendum Acts the Constitutional Bill but not the second schedule would have the force of law. For the proposal in the schedule to become part of the domestic law then the normal and standard legislative process contained inter alia, in Articles 15, 20 and 25 of the Constitution must be applied. The applicant failed to make out any arguable case in law.

1 Mr. Justice William M. McKechnie delivered the 14th day of February 2002

2 1. Mr Riordan, the applicant above named, having obtained the prior permission of the Supreme Court as required by that Court's Order dated the 23rd day of October 2001 and made in proceedings entitled Denis Riordan Applicant, and An Taoiscach Bertie Ahern TD and others Respondents, now seeks from this Court leave to apply by way of an application for Judicial Review, for the reliefs claimed in the statement grounding the application and he does so on foot of the grounds therein mentioned. On moving this ex parte application on Friday last, the 8th of February, I decided in the exercise of my discretion, that the Respondents so named should be put on notice of the making of this application and fixed the following Tuesday, as the return date, for that purpose. Having been served with the required documentation the application for leave was opposed and it is in respect of that which I presently give judgment.

3 2. In all, between Declarations, Orders of Certiorari and other Orders, there are about 20 reliefs sought and in support of their granting there are approximately 30 grounds relied upon. The verifying Affidavit which deals with these grounds also contains much of the legal argument which Mr Riordan advanced in aid of the reliefs claimed. No responding documentation has been filed with the opposition being based solely on matters of law and on legal argument.

4 3. The challenge so mounted by the Applicant, has, at its core, the legality of the Twenty Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001. In broad terms what is sought is:-

5 (a) A declaration that the Bill, in the manner in which it proposes to amend Articles 15, 26, 27 and 40 of the Constitution, is repugnant to the mandatory provisions of Article 46 thereof,

6 (b) A declaration that Article 46, being the only provision under which the Constitution can now be amended, does not authorise or permit what has been described as a conditional amendment such as that as contained in the said Bill.

7 (c) A declaration, that if approved by the people at referendum, the proposed amendment to Article 40, by the insertion of subsections (4) and (5) to section 3 thereof, will take effect forthwith upon the said Twenty Fifth Amendment of the Constitution Bill being enacted into law,

8 (d) A declaration that the amendment last mentioned, if so approved by the people and if so enacted into law, will continue to have effect and be part of the law, notwithstanding any failure by the Oireachtas to enact into law, within the specified period of 180 days, the proposal as contained in the second schedule to the said Bill, and

9 (e) an Order of Certiorari quashing the decision of both Dáil Éireann and Seanad Éireann in passing the aforesaid Twenty Fifth Amendment Bill.

10 In addition Mr Riordan seeks a declaration that the appointment of Robert Molloy T.D. to be Minister of State to the Government was and is illegal.

11 4. The above, of course, is only a summary of what is claimed. The Applicant also alleges that if passed into law, the Bill will result in the Constitution being mutilated, that the Oireachtas is specifically prohibited from enacting into law the said proposals as set forth in the second schedule, that in passing the Twenty Fifth Amendment Bill both Houses of the Oireachtas acted unreasonably, negligently, deceptively, and ultra vires and that, if the proposed constitutional amendment should be made unconditional, it will not reverse the decision of the Supreme Court in the "X" Case. In addition declarations are sought against An Taoiseach, Bertie Ahern T.D., arising out of his speech delivered on the 2nd day of October 2001 and lastly Mr. Riordan also wants this Court to compel the Government to immediately advise the people that the amendment Bill is seriously flawed and is repugnant to the Constitution.

12 5. Article 46 of the Constitution reads as follows:-

"Article 46"

1. Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided by this Article.

2. 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.

3. Every such Bill shall be expressed to be "An Act to amend the Constitution".

4. A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.

5. A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with...