Referenda in Ireland Flashcards
Referenda in Ireland
summary
Issues surrounding referenda
Case law
Issues surrounding referenda
• Issues of concern:
usually applicants will raise challenges as to the wording of how referenda are presented to the public (Roche v Ireland).
Another big issue around referenda is information and funding, particularly when public monies are used or applied to broadcasting time: Slaney v An Taoiseach and the McKenna cases and Coughlan.
Results of referenda have been challenged in Hanafin v Minister for Environment and most recently in Jordan v Minister for Children in relation to the children referendum.
Case law
summary
- Doherty v Referendum Commission:
- McCrystal v Minister for Justice:
- McKenna:
- Jordan:
• Doherty v Referendum Commission:
during the financial crisis, the EU made provision for member states in financial crisis, one such being Ireland.
These measures required unanimity from member states in the European Council.
The applicant sought leave to apply for judicial review of an oral statement made by the chairperson of the referendum commission and another statement made as regards the European Stability Mechanism (ESM) as to whether Ireland could veto a decision made by the European Council.
The argument was that these statements were ultra vires the power of the referendum commission. This application was refused.
Noted that the commission should have wide scope to communicate its message to the public. Held commission had to refer to the background of the ESM in a fair and non-partisan manner.
• McCrystal v Minister for Justice:
unanimously held by SC that the Government had illegally interfered with the Children’s’ Referendum by running a biased information campaign with tax payers’ money in clear violation of the earlier McKenna principles.
Noted that as regards referenda, Article 46 provides that any provision of BnaH may be amended in the manner provided in that article.
Article 46.2 states that every proposal for an amendment shall be initiated in Dáil as a bill, and, 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.
Such a proposal will be held to have been approved by the people if, having been so submitted, a majority of the votes cast at such referendum are cast in favour of its enactment. Thus, the organs of government are involved in initiating a referendum.
In practice, the executive commences the process by a cabinet decision to hold a referendum. The legislature then initiates the proposal as a bill in the Dail. The bill is then passed, or deemed to have been passed, by both houses of the Oireachtas. Once passed by the Oireachtas, the matter is submitted by referendum to the decision of the people.
Noted that in McKenna, cts have no power to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by BnaH on the exercise of such powers. Cts 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 BnaH.
The test to be applied is whether the circumstances are such as to amount to a clear disregard by the Government of the principles stated. This is an objective test. Consequently, here the HC had erred in the test it applied and this is why SC allowed for appeal in this case.
• McKenna:
SC held that Government, in expending public monies in promotion of a particular result in a referendum process, was acting in breach of BnaH.
An election process, whether it be a local election, a general election or a referendum, is not an exercise of executive power by the Government.
It was noted that the Government is entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure.
Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense.
Any ‘information’ disseminated by the Government at public expense must be equal, fair, impartial and neutral.
Further, 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.
• Jordan:
challenged the outcome of the referendum using a little explored process contained in the Referendum Act 1994 whereby the result in a referendum can be set aside if illegal interference by the State in the referendum process had a “material affect” on the outcome. Jordan also challenged the act itself, claiming that it set too high a burden upon those who are seeking to set aside referendum results, to the point where it is virtually impossible for a petitioner to succeed. HC dismissed this argument and she appealed to SC. SC noted that it is a core value of our democracy that the sovereign will of the people be respected at all times
Because of the inherent flexibility of the ‘material affect’ test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person could be in doubt about, and longer trust, the outcome of the election or referendum.
SC also noted that the act itself was not unconstitutional and that the burden of the test was reasonably proportionate to the gravity of the relief sought. While there is no doubt the Government made a significant error by engaging in illegal and entirely unnecessary behaviour during the Childrens’ referendum, it was not likely that the ct would interfere with the sovereign will of the people as expressed at the referendum (described as an “awesome undertaking” by SC in Hanafin).
The facts involved Jordan who campaigned for a No vote, previously obtained leave to bring a petition aimed at overturning the Yes result. She relied on McCrystal which ruled that the Government in spending of €1.1 million public monies on a one-sided information campaign was in clear disregard of the constitutional limits on what the State may do in a referendum.
Jordan also relied on McKenna principles i.e. that the State is constitutionally prohibited from spending public monies to advocate support for a particular side in a referendum. SC agreed that what is required in cases where a breach of the McKenna principles is “a harmonious balance” between the competing constitutional principles, obligations and rights. In order to find a balance between making it “too easy” to overturn a decision of the people, and making a genuine challenge so difficult as to be practically impossible, SC clarified the test for establishing “material affect”. It clarified that challengers to referendums must establish it is “reasonably possible that the irregularity or interference identified affected the result”. The object of the test was to identify the point at which it can be said “a reasonable person could be in no doubt about, and no longer trust, the provisional outcome of the election or referendum”. Taking McCrystal into account, ct ruled it had not been established it was “reasonably possible” the actions of the Minister for Children materially affected the outcome of the referendum as a whole.
