Slattery v Tagiseach

JurisdictionIreland
Judgment Date01 January 1993
Date01 January 1993
Docket Number[1992 No. 3869P: S.C. No. 180 of 1992]
CourtSupreme Court

High Court

Supreme Court

[1992 No. 3869P: S.C. No. 180 of 1992]
Slattery v. An Taoiseach
In the matter of Bunreacht na hÉireann héireann and in the matter of the Eleventh Amendment of the Constitution Bill, 1992 and in the matter of the Referendum (Amendment) Act
1992.
Richard Slattery, James Clair and Sheelagh Hanley
Plaintiffs
and
An Taoiseach and others
Defendants

Cases mentioned in this report:—

The Attorney General v. X [1992] 1 I.R. 1.

Barry v. Buckley [1981] I.R. 307.

Crotty v. An Taoiseach and others [1987] I.R. 773.

Dolan v. Neligan [1967] I.R. 247.

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

Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425.

Wireless Dealers Association v. The Minister for Industry and Commerce(Unreported, Supreme Court, 14th March, 1956).

Constitution - Referendum - Constitutional provisions establishing mechanism for holding of referendum - Requirement that proposal to amend Constitution be in the form of a Bill - Requirement that Bill be passed by both Houses of Oireachtas and signed by President - Requirement that referendum be held - Bill promulgated which proposed amendment to Constitution - Whether courts entitled to construe or review Bill to amend the Constitution - Whether courts entitled to review Bill only where President has referred Bill to Supreme Court - Referendum Act, 1942 (No. 8) - Constitution of Ireland, 1937, Articles 6, 15, 26, 46 and 47.

European Communities - Treaty on European Union - Bodies established under Treaty empowered to pass laws which would have precedence over Irish law - Referendum necessitated before Ireland could ratify Treaty - Plaintiffs members of political party - Whether ratification of Treaty would enable bodies established under Treaties to pass laws legalising abortion and introducing conscription - Injunction sought pending clarification by Government of terms of Treaty - Whether Government obliged to provide information on Treaty to the public.

Constitution - Separation of powers - Courts - Power of court to interfere with exercise of legislative or executive power - Injunction - Whether injunction can lie to stop or interfere with legislative or executive process authorised by Constitution.

Practice and procedure - Court vacation - Application brought during vacation - Criteria for hearing of application brought during vacation - Whether a matter of urgency - Whether failure to bring application prior to vacation a ground for refusal to entertain application.

Ex parte application to the High Court.

The facts have been summarised in the headnote and are set out in the judgments, post.

On the 8th June, 1992, the plaintiffs applied ex parte to the High Court (Costello J.) for liberty to serve and have heard during the Whitsun vacation a notice of motion dated the 5th June, 1992. The notice of motion sought interlocutory relief on foot of a plenary summons dated the 2nd June, 1992, which claimed inter alia the following reliefs:—

"(1) An interlocutory injunction restraining the defendants from holding a referendum to amend the Constitution of Ireland, 1937, the effect of which amendment would be to enable the respondents to ratify the Treaty on European Union, until such time as the defendants through their agencies provided the plaintiffs and the citizens of the State with factual information or evidence of the benefits, disadvantages and onerous provisions of the Treaty on European Union.

(2) A mandatory injunction compelling the defendants through its agencies to provide to the plaintiffs and the citizens of the State factual information on or evidence of the benefits, disadvantages and onerous provisions of the Treaty on European Union.

(3) An injunction restraining the defendants from holding the referendum prior to the clarification by the defendants of the effects in Irish law of the ratification of the Treaty on European Union having regard in particular to Article 40, s. 3, sub-s. 3, of the Constitution (which afforded constitutional protection to the unborn child)."

The plaintiffs appealed against the judgment and order of the High Court by ex parte motion dated the 10th June, 1992. The motion was grounded upon the affidavit of Richard Slattery filed on the 9th June, 1992.

The appeal was heard by the Supreme Court (Hederman, McCarthy and Egan JJ.) on the 10th June, 1992.

Article 6 of the Constitution of Ireland, 1937, proclaims that all powers of government legislative, executive and judicial, are derived, under God, from the People.

Article 15, s. 4, sub-s. 1 of the Constitution provides that the Oireachtas shall not enact any law which is any respect repugnant to the Constitution.

Article 15, s. 4, sub-s. 2 provides that any law enacted which is repugnant to the Constitution shall, to the extent only of such repugnancy, be invalid.

Articles 46 and 47 make provision for amendment of the Constitution by way of referendum. Article 46, s. 2 provides that every proposal for an amendment of the Constitution shall be initiated in Dail Éireann éireann as a Bill, and shall, having been passed by both Houses of the Oireachtas, be submitted by referendum to the People.

Pursuant to Article 46, s. 2 of the Constitution the defendants had, on the 29th April, promulgated a Bill entitled "The Eleventh Amendment of the Constitution Bill"which contained a proposal to amend Article 29 of the Constitution with a view to enabling the respondents to ratify the Treaty on European Union (otherwise known as the Maastricht Treaty).

Part 2 of the Schedule to the said Bill provided inter alia:—

"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union and of the Communities or prevents laws enacted or acts done or measures adopted by the European Union or by the communities or by institutions thereof or by bodies competent under the Treaties establishing the Communities from having the force of law in the State."

It was proposed to hold a referendum to amend the Constitution on the 18th June, 1992.

The Government published a White Paper and circulated to the public a document entitled "A Short Guide to the Maastricht Treaty [The Treaty on European Union]." A copy of the Treaty on European Union itself could be purchased by members of the public.

On the 8th April, 1992, the Minister for Foreign Affairs stated publicly that a failure by any Member State to ratify the Treaty on European Union would operate to nullify the legal effect of the Treaty. On the 2nd June, 1992, Denmark voted against ratification. Nevertheless, the defendants, on the same day, announced their intention of proceeding with the holding of a referendum.

The plaintiffs were members of an emergent political party, "The Christian Centrist Party". On the 5th June, 1992, the plaintiffs issued a plenary summons seeking inter aliaan interlocutory injunction restraining the defendants from holding the said referendum until such time as the defendants provided the plaintiffs and the citizens of the State with factual information or evidence of the benefits, disadvantages and onerous provisions of the Treaty on European Union and had provided clarification as to the legal effects of ratification of the Treaty on European Union having regard in particular to Article 40, s. 3, sub-s. 3 of the Constitution (which afforded constitutional protection to the unborn child).

The plaintiffs had intended to seek interlocutory relief pending the trial of the action. However, as the Whit vacation had commenced it was not possible to serve a notice of motion seeking such relief on the defendants or secure a date for the hearing of same prior to the date on which it was proposed to hold the referendum.

Accordingly, on the 8th June, 1992, the plaintiffs applied to the High Court for liberty to have the notice of motion heard during the Whit vacation. On behalf of the plaintiffs it was argued that the motion had not been served prior to the vacation because (i) the plaintiffs were awaiting the outcome of the referendum on the Treaty on European Union in Denmark, and (ii) they were unable to obtain information regarding the referendum and the Treaty on European Union.

Held by the High Court (Costello J.) in refusing liberty to the plaintiffs to have the motion heard during the vacation, 1, that when an application is made for a matter to be heard during the vacation there must be some valid reason forthcoming as to why proceedings were not instituted sooner.

2. That no valid reasons existed for the delay in instituting proceedings as (i) the result of the Danish referendum did not affect the ability of the plaintiffs to institute the proceedings before the vacation had commenced and (ii) reasonable efforts had been made by the defendants to disseminate information concerning the effects of the Treaty on European Union.

McKenna v. An Taoiseach (Unreported, High Court, Costello J., 8th June, 1992) considered.

3. That in any event it was unlikely that the reliefs sought by the plaintiffs would be obtained in an interlocutory application.

McKenna v. An Taoiseach (Unreported, High Court, Costello J., 8th June, 1992) considered.

On appeal by the plaintiffs against the judgment and order of the High Court it was

Held by the Supreme Court (Hederman, McCarthy and Egan JJ.), in affirming the order of the High Court, 1, that where an application relates to a matter of a great urgency it should be entertained by a court even if the urgency of the situation was brought about through the plaintiffs' delay in issuing proceedings.

Per McCarthy J.; Hederman J. concurring: That a decision by a court to refuse liberty to serve a notice of motion did not constitute a denial of access to the courts. In the instant case the plaintiffs were not denied access to the courts.

Barry v. Buckley [1981] I.R. 307 and Sun Fat Chan v. Osseous...

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