Referendum law Flashcards
what are the most important articles of the Constitution in relation to a referendum to amend the Constitution
Article 46 provides that any provision of the constitution may be amended and Art 47 provides that anyone who can vote in the dail elections may vote.
Information and funding
The Courts have held that public resources cannot be used to favour a particular outcome. That applies to financial expenditure and the allocation of broadcasting time.
Can the constitution be amended?
Case law has established that people are free to amend the Constitution in any way they wish. Consequentially the courts will not interfere with the wording of a proposed amendment. A number of cases have confirmed this position
For example, in Roche v Ireland, it was argued that the proposed wording of the 8th amendment was too vague and didn’t properly enable a citizen to decide how best to vote. The High Court held that this issue was justiciable and thus the court could not intervene
Spending of public monies
The Courts have held that public money cannot be spent in such a way as to favour either a ‘yes’ or ‘no’ vote. This had not always been the case.
In McKenna (No 1) (1995) 2 IR 1 the government had funded a yes vote in the Maastricht Referendum with public monies. The applicant had sought to restrain this one-sided advertisement campaign.
The High Court held that the issue was justiciable as it concerned the spending of public money
The same applicant made the same argument in relation to the divorce referendum in McKenna. This time the matter was appealed to the Supreme Court, which held that public cannot be spent in such a way as favours one particular side. It gave two reasons for its decision
(i) it amounted to a breach of equality as funding one side favoured one section of voters over another;
(ii) it breached the democratic process. The court did point out that the government was entitled to advocate for a particular result
Allocation of Broadcasting Time
Coughlan v Broadcasting Complaints Commission dealt with a complaint
surrounding the allocation of broadcasting time in relation to the divorce referendum. It was argued that the ‘yes’ side received more broadcasting time than the ‘no’ side. All political parties
were campaigning for a ‘yes’ vote.
The Supreme Court held that the state broadcaster must ‘hold the scales equally’. It stressed that mathematical equality was not required.
what was held in the case of Slattery v An Taoiseach
Slattery v An Taoiseach was an attempt to stop the holding of the Maastricht Treaty Referendum. Slattery argued that the Government had not provided adequate information on the possible implications. The Supreme, Court held that it should not interfere in the legislative process.
It did, however, note that there may be circumstances in which it could interfere. If people felt uninformed, it was always open to them to vote against the proposal.
what are the facts of McC stat v Minister for Children
McCrystal v Minister for Children is an important case in this area. It concerned an ‘information’ campaign launched by the minister before the Children’s rights referendum. It was argued that this campaign was not neutral. The Supreme court held that the test for intervention was whether there had been a ‘clear disregard’ of constitutional pirnciples. It was agreed with Hogan J’s comments above that it should not parse and analyse every line.
On the facts it held that the overall tone of the campaign was one-sided and it was imbued throughout with value judgments and positive statements about proposals. It stressed that it arrived at its conclusion with reluctance
what happened in the case of Hanafin v Minister for enviroment - challenging Result of referenda
Hanafin v Minister for enviroment was a challenge to the result of the Divorce Referendum on foot of the Mckenna case. It was held that the test for quashing the result of a referendum was an ‘express and obvious abuse affecting the result of the referendum’
what is the test?
It held that the test was whether it was ‘reasonably possible’ that the result was affected. This was to be Judged by an objective
standard and the burden was on the applicant. It was not necessary to prove that the result would have been different.
What did Clarke J say when he considered the issue of survey evidence?
Clarke J considered the issue of survey evidence and found that there was no reason in principle why it and expert evidence could not be admitted. In that respect the Court would
have to have regard to how the survey was conducted and whether it followed proper protocols and approved methods.
what are the facts of Jordan v Ireland?
The first ground of complaint was that the Minister for Health played an active role in advocating for a yes vote. It was argued that a minister of the government had a duty to defend the constitution.
Secondly the applicant submitted that some people had been taken off the registar of electors and some young people had been paid to come home to vote.
The challenge was dismissed by the High Court and this finding was affirmed by the Court of appeal. On the first point, the Curt held that the minister was entitled to campaign for the yes vote. It was held that there was no merit to the second point as no evidence had been presented to corroborate the applicant’s submission and it was up to every citizen to check that they were on the registar of electors
what are the facts of Riordan v An Taoiseach - wording of the amendment
Riordan v An Taoiseach was a challenge to the 19th amendment (the Good Friday Agreement). This gave the Government the power to vary Articles 2 and 3 of the Constitution if the agreement was signed.
Thus, it was a form of conditional amendment. This was challenged on the basis that such a conditional proposal was invalid.
