Amending the constitution Flashcards
Roche v Ireland
In Roche v Ireland High Court, the plaintiff claimed a proposed amendment to the Constitution was so vaguely worded that he could not know how to vote and would abstain, thus being deprived of his constitutional right to vote. The plaintiff sought to prevent the amendment from taking place. The courts refused to intervene in the wording of the referendum.
Slattery v. An Taoiseach
The court rejected an application to restrain the 11th amendment of the Constitution. (The Maastricht Treaty).
Riordan v An Taoiseach
Mr. Riordan sought injunctive relief against the Taoiseach to halt the holding of the Good Friday Agreement Referendum on Arts 2 and 3 of the Constitution. Mr. Riordan said that the proposed change to the Constitution allowed a “conditional referendum”, in that a Yes vote would give the Government the option of changing the text of the Constitution once it was required by the Good Friday Agreement. The High Court, refused relief saying that the court cannot conduct and outcomes of Referendums
McKenna v An Taoiseach (No 2)
The first case where the courts did intervene in this process was in McKenna v An Taoiseach (No 2)
McKenna was unsuccessful in an earlier attempt to prevent the Maastricht Treaty Referendum on grounds of lack of information. The courts refused to intervene as they said to do so would breach the separation of powers.
However, in this later case she challenged the distribution of public funds in a referendum campaign. She sought an injunction to stop the Government spending public funds promoting a Yes vote in the Divorce Referendum. Keane J (then in the High Court) held that the spending of public funds was non justiciable. However, The Supreme Court disagreed, and Hamilton CJ set down the following three principles for judicial intervention:
“(1) The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution On the exercise of such powers.
(2) If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but also obliged to intervene.
(3) The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution. Such a disregard must be clearly established.”
Hanafin v Minister for the Environment.
Hamilton CJ held that the spending of public funds, by the Government, in funding its Yes campaign was an interference with the democratic and constitutional process for the holding of a referendum and was unconstitutional. the Supreme Court later held that the unconstitutional spending did not materially affect the outcome of the Referendum in Hanafin v Minister for the Environment.
McCrystal v Minister for Children and Youth Affairs
McCrystal v Minister for Children and Youth Affairs considered the conduct of the Government in the period leading up to the so called Children’s Referendum.
Separately from the referendum commission, the Minister for Children and Youth Affairs also commenced an information campaign. This included a website, and, less than a month before the referendum, the commencement of delivery of an information booklet to all homes.
The plaintiff claimed that the information campaign run by the minister, wrongfully and in breach of the Constitution, was not confined to the neutral transmission of information, but was designed and/or intended and/or likely to promote a particular result. It was claimed that, wrongfully and in breach of the Constitution, the defendants had engaged in expending or arranging to expend public monies on promoting a particular result.
The Supreme Court ruled that the defendants had acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the referendum in a manner which was not fair, equal or impartial.
McKenna v An Taoiseach (No.2) test
The test to be applied by the court in determining whether or not it should intervene was that established in McKenna v An Taoiseach (No.2), namely whether the circumstances were such as to amount to a clear disregard by the government of the principles stated.The burden of proof was on the appellant to establish, on the balance of probabilities, that, on the facts of the case, there had been a clear disregard by the respondents of the McKenna principles.
Outcome of the McKenna Principles
The outcome of the referendum in the McKenna case was unsuccessfully challenged in Hannafin, and following the referendum in the McCrystal case the outcome was again unsuccessfully challenged in Jordan v. Minister for Children and Youth Affairs. In this case the Court refines and clarifies the test to be applied when the outcome of a referendum is challenged . The test to be applied is “material affect on the outcome of a referendum’ involves establishing that it is reasonably possible that the irregularity or interference identified affected the result.
