Amending the Constitution

Question 1

Two types of Referendum Challenges

Answer 1

1) Process of referendum
2) Result of referendum

Question 2

Roche v Ireland

Answer 2

• Claimed referendum was vaguely worded and did not know how to vote
  ◊ Led to him abstaining from voting

® Court held that they could not interfere with the wording

Question 3

Finn v Attorney General

Answer 3

• Challenged the content of Eighth Amendment to the Constitution Bill 1983
• Courts held that they could not interfere
• Held that **if there was a breach in procedure, they could possibly intervene **
• Could not interfere on the content

Question 4

McKenna v An Taoiseach

Answer 4

• Challenge to the public funds only to support a ‘yes’ vote on the Maastricht Treaty
• Argued that it was unfair as it tipped the balance in favour of yes vote

Court held that they were asked to look at political issues, not justiciable, so they could not intervene

Question 5

Slattery v An Taoiseach

Answer 5

• Supreme court refused a claim to restrain the holding of the referendum until the plaintiffs were provided with** certain factual information** concerning it
• Held they had no power to interfere in the operation of legislative and constitutional procedures

Question 6

McKenna v An Taoiseach (No. 2)

Answer 6

• Same argument, however argued on constitutional grounds
  □ e.g. fairness, equality, democracy
• Courts did hear it as it was in their domain

Question 7

McCrystal

Answer 7

• The Government had published a booklet and website in regards to the pending referendum on the Thirty First Amendment of the Constitution (Children) Bill 2012

Created McKenna Principles

Question 8

McKenna Principles

Answer 8

§ McKenna Principles

			1) The Government is entitled to campaign for a yes vote by any method it chooses, **other than by the expenditure of public funds**. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising
			 
			2) The government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to **advocate **the proposed change. 
				® Government ministers may use their State transport in relation to  the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members **must not spend public monies in favour of one side **
				
			3) The right to **equality **applies in the referendum process
				® Spending public monies in favour of one side of a referendum breaches the equality of the citizens 
				
			4) Spending public monies in favour of one side of a referendum **puts the voting rights of one class of a citizen above those of another class citizen **
			
			5) The public purse **must not be expended to espouse a point of view** of which may be anathema to certain citizens who, of necessity, have contributed to it
			
			6) There is a **right to a democratic process** in the holding of a referendum
				® It is an interference with the democratic process for the Government to spend public monies in a referendum campaign to benefit one side 
				
			7) In submitting the proposed amendment to the decision of the people, the **Government should observe fair procedures**
				® The scales must be equally held between those who support and who oppose an amendment 
				
			8) The freedom to express opinions incorporates the corollary right in that democratic process
			
			9) The Government has the **right to give information, clarify situations, give explanations and deal with unforeseen matters and emergencies,** but in doing do, public funds should not be used in favour of one side in a referendum

Question 9

Hanafin

Answer 9

• O’Flaherty J noted the presumption in favour of the integrity of the democratic process and refused to overturn the result of the referendum particularly when the people had been aware of the flaw prior to the referendum.
• Referendum was not ‘materially affected’ by the funding
  Concerned Referendum Act 1994

Question 10

Jordan

Answer 10

• Challenged the outcome of the children’s referendum
  ‘a petitioner must establish not just irregularity or other matter…but also that the referendum as a whole was affected materially thereby’

Created rules to ‘material affect’

Question 11

‘material affect’ rules

Answer 11

1) Finding of an **irregularity in the conduct of the referendum **

			2) The irregularity has the **capacity to distort, alter and interfere** with the outcome 

			3) **Evidence** in opinion polls, trends in voting, the opinion of political experts on 'both the progress of the campaign and the impact of the irregularity and any court determination are all relevant considerations to be taken into account'

			4) While individuals cannot be compelled to disclose their vote or the reason behind it, when the misleading nature of statements made during the campaign is revealed, a significant number of those people may be willing to **give evidence that their vote was 'improperly influenced**'

			5) The **nature of interference** and the numbers taking part in the vote and the **margin of victory** involved will be at the forefront of the court's mind

Question 12

Jordan v Ireland & Others

Answer 12

• Challenge of the result of the right to life of the unborn child amendment
• Argued there were irregularities in the electoral register, overseas citizens returning to vote and the high-profile role paid by the Minister for Health in promoting YES vote
  □ Simon Harris
• Court held that there was no break in the McKenna principles and that there had been no irregularities