Sherwin v Minister for Environment

• Jurisdiction: Ireland
• Judgment Date: 11 March 1997
• Date: 11 March 1997
• Docket Number: [1996 No. 2661P]
• Court: High Court

Sherwin v. Minister for Environment

Fionuala Sherwin

Plaintiff

and

The Minister for the Environment, Ireland and The Attorney General

Defendants

[1996 No. 2661P]

High Court

Constitution - Amendment - Referendum - Personal rights - Equality - Nature and extent of ministerial power to modify statute - Whether refusal to modify statute breached guarantee of equality - Whether operation of statute unconstitutional - Right of public to access referendum count - Electoral Act 1992 (No. 23), ss. 59, 60 and 164 - Referendum Act 1994 (No. 12), ss. 26 and 33 - Fifteenth Amendment of the Constitution Act 1995 - Constitution of Ireland, Articles 40, 46 and 47.

Electoral law - Personation agents - Appointment - Purpose - Whether Minister having discretion to modify appointment procedures of personation agents - Whether special difficulty existed - Whether discretion exercised - Whether appointment procedure interference with democratic process - Whether function to detect malpractice by opponents or to assist returning officer - Electoral Act 1992 (No. 23), s. 164.

Statute - Amendment - Power to amend statute by ministerial order - Nature and scope of power of amendment - Emergency or special difficulty - Electoral Act 1992 (No. 23), s. 164.

Section 26 of the Referendum Act 1994 provides that members of the Oireachtas may appoint personation agents and agents to monitor the counting of votes in a referendum.

Section 164 of the Electoral Act 1992 provides, inter alia, that the Minister for the Environment may, where there is an emergency or special difficulty arising on a referendum, by order adapt or modify any relevant statute.

The plaintiff opposed the referendum on the Fifteenth Amendment of the Constitution (No. 2) Bill 1995. The proposal in the referendum was supported by all political parties in the Oireachtas. The plaintiff claimed that the first defendant was entitled to adopt procedures which allowed for the appointment of agents or personation agents on behalf of those opposed to the referendum and that s. 26 of the Referendum Act 1994 was unconstitutional in reserving the power of appointing personation agents or agents in referenda to members of the Oireachtas.

Held by the High Court (Costello P.), in granting declaratory relief regarding the powers of the first defendant but refusing relief on the constitutional issue, 1, that the first defendant was empowered under s. 164 of the Electoral Act 1992 to amend by ministerial order s. 26 of the Referendum Act 1994 where he was satisfied that a special difficulty existed in duly holding the referendum. In the instant case, the fact that all of the political parties in the Oireachtas supported the referendum was capable of constituting a special difficulty within the meaning of the section. Whether in fact these circumstances did constitute a special difficulty was a decision for the first defendant.

2. That the Referendum Act 1994 was not unconstitutional and did not become unconstitutional in the circumstances surrounding the enactment of the Fifteenth Amendment to the Constitution, as there was a remedial mechanism to remedy possible constitutional invalidity in its operation.

Obiter dicta: 1, that Article 40.1 of the Constitution was not an absolute guarantee of equality and had no application to the appointment of personation agents or agents to monitor the counting of votes as the differences in the appointment of agents between the groups supporting and those opposing the amendment arose from the operation of administrative machinery established by statute and were not based on considerations relating to the personal characteristics of the individuals comprising the group.

Quinn's Supermarket v. Attorney General [1972] I.R. 1followed.

3. That the purpose of personation agents was to assist returning officers in ensuring compliance with the law against personation and the purpose of agents was to monitor the counting of votes were appointed to help the returning officer count the votes properly and not to detect possible malpractice by political opponents and accordingly, the manner of the appointment of such agents could not be considered an interference in the democratic process.

McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10distinguished.

4. That the Constitution permitted the Oireachtas to regulate the manner in which referenda were held and practical reasons existed as to why access by the public to a referendum count should be limited.

Cases mentioned in this report:-

McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10; [1996] 1 I.L.R.M. 81.

Quinn's Supermarket v. Attorney General [1972] I.R. 1.

Plenary summons

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

The plaintiff had sought, inter alia, orders ofcertiorari and mandamus and an order that s. 26 of the Referendum Act 1994 infringed the Constitution. The plaintiff was refused leave to apply for judicial review on the 19th December, 1995. This refusal was affirmed by the Supreme Court on the 23rd February, 1996. By plenary summons dated the 22nd March, 1996, the plaintiff sought declaratory reliefs in respect of the first defendant's powers under the Electoral Acts and the constitutionality of s. 26 of the Electoral Act 1994. On the 24th October, 1996, the High Court ordered that the matter be heard on affidavit.

The matter was heard by the High Court (Costello P.) on the 23rd and 24th January, 1997.

Cur. adv. vult.

Costello P. 11th March, 1997

Introduction

1 The Fifteenth Amendment of the Constitution (No. 2) Bill was passed by the two Houses of the Oireachtas on the 18th October, 1995. The constitutional amendment proposed was the deletion of the constitutional prohibition of civil divorce, a proposal which could only be adopted by a favourable vote in a referendum held under the Referendum Act 1994. Polling took place on the 24th November, 1995 and, after a recount, it was declared that the proposal had been carried by 818,842 votes in favour and 809,728 votes against. The Constitution was accordingly amended.

2 The plaintiff in these proceedings had vigorously campaigned against the proposal. She was a member of an umbrella organisation which contained a number of different groups of persons with similar views. In the course of the campaign a matter of serious concern to her and her associates arose; she ascertained that, by s. 26 of the Referendum Act 1994, only members of the Oireachtas could appoint personation agents and agents to monitor the counting of votes. As she had no access to members of the Oireachtas and as all political parties represented in the Oireachtas were supporting the amendment which she opposed, she felt aggrieved. By letter of the 11th November, 1995, she complained of these provisions to the first defendant and requested him to exercise his statutory powers to rectify the defects she identified. By letter of the 15th November, 1995, the first defendant stated that he had no power to adopt the requested measures. This is the first ground of complaint in this action - the plaintiff urges that he has misconstrued his statutory powers. But she also claims that s. 26 of the Act of 1994 infringed the Constitution and she has claimed declaratory and other relief. She has not sought to have the referendum declared invalid. She applied, ex parte, for leave to institute proceedings by way of judicial review. This was refused on the 19th December, 1995, and this refusal was confirmed on the 23rd February, 1996, by the Supreme Court. As a result a plenary summons was issued on the 22nd March, 1996, in which declaratory relief is sought and after the usual pleadings an order by consent was made on the 14th October last providing that the trial be heard on affidavit.

3 Before referring to the relevant facts and, in more detail, to the issues that arise I will set out the constitutional and statutory provisions relevant to these issues.

The law

(a) The Constitution

4 Article 46 of the Constitution provides that any provision of the Constitution may be amended in...