Constitutional - Referendum Law

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Article 46.1

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Any Article of the Constitution may be amended (by variation/addition/repeal).
Different from Italy (Art. 139 – Italy = Republic); Germany (Art. 1-19).

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Article 46.2

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Every amendment requires a bill initiated in Dáil, passed by both houses, and put to a referendum.
Different from German procedure (two-thirds majority in both houses).

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Article 46.3

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Every bill must be expressed as “An Act to amend the Constitution”.

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Article 46.4

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A bill containing amendment may not contain any other legislation.
However, multiple amendments are possible within one Act (e.g. 2nd Amendment).

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Article 46.5

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President satisfied about procedure: signs Act into law.

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Article 47.1

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To amend the Constitution, majority of votes required at Constitution.

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Article 47.3

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Electorate = Dáil electorate.

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Article 47.4

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Referdendum regulated by law.

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Roche v. Ireland (1983)

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Facts:

Pertained to the 8th Amendment of the Constitution (right to life of the unborn).

Roche claimed that the amendment was so vaguely worded that it infringed his right to vote.

He sought an injunction preventing the referendum from taking place.
Decision (HC):

1) Per Carroll J: the judiciary is not entitled to interfere in the legislative process, and thus couldn’t grant and injunction against the holding of the referendum.

Outcome:

1) Substantive challenges will not be upheld, as the substance of the amendment is a matter for the legislature.

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Substantive Challenges

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Substantive challenges will not be upheld, as the substance of the amendment is a matter for the legislature. - Roche -v- Ireland (1983), Finn -v- AG (1983)

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Finn v. AG (1983)

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Facts:

Pertained to the 8th Amendment of the Constitution (right to life of the unborn).

Finn claimed that the amendment was superfluous, since the right to life of the unborn was already protected by the right to life.

He sought an injunction preventing the referendum from taking place.

Decision (HC):

1) Per Barrington J: Article 46.1 gives to the people the right to amend, which may include clarification.

2) Reiterated Carroll J. in Roche: the Courts cannot prevent the Oireachtas putting a proposal to the people.

Decision (SC):

1) Upheld the decision of Barrington J.: the Courts cannot halt the legislative process.

2) The only legislation which can be reviewed prior to its promulgation is that which the President refers to the SC under Article 26.

Outcome

1) Substantive challenges will not be upheld, as the substance of the amendment is a matter for the legislature.

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Slattery v. An Taoiseach (1993)

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Facts:

Pertained to the 11th Amendment of the Constitution (Treaty on European Union).

The applicant sought an injunction restraining the Government from holding the referendum, because of lack of information provided to the electorate, especially of the “onerous” provisions in the Treaty – i.e. he was concerned that the Government had provided a one-sided account of the amendment.

Decision (SC):

1) Per Hederman J.: The Courts cannot stop “legislative and constitutional procedures which are in train”.

2) In light of the separation of powers, granting the injunction would be a “wholly unwarranted and unwarrantable intervention” in the legislative domain.

3) However, the SC reserved the right to intervene where constitutional procedure was breached.

Outcome:

1) Provided the relevant constitutional procedures are adhered to, the judiciary will refuse to intervene in the amendment process.

2) There is no duty to provide balanced information as to the referendum’s contents.

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McKenna v. An Taoiseach (No. 1) (1993)

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Facts:

Pertained to the 11th Amendment of the Constitution (Treaty on European Union).

McKenna argued that because the Government spent public funds on one side of a campaign, the Constitution was breached because:

(a) The result was unfair distorted.

(b) Her personal right to equality before the law was violated.
Decision (HC):

1) Per Costello J.: her right to equality was not violated, because each vote was of equal weight on polling day.

2) The spending of public funds was non-justiciable for two reasons:

(a) It is scientifically difficult for the Court to ascertain the effect of spending on the outcome;

(b) Public spending lies clearly in the executive’s domain.

Outcome:

1) Even spending of public funds in the framework of a referendum campaign was deemed outside the realm of the judiciary.

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McKenna v. An Taoiseach (No. 2) (1995)

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Facts:

Pertained to the 15th Amendment of the Constitution (dissolution of marriage).

In 1986, a referendum to introduce divorce had narrowly failed.

This time, the Dáil approved a £500,000 campaign for the “yes” side.

McKenna sought an injunction preventing the Government using public funds for this purpose.

Her arguments were identical:

(a) The result was unfair distorted.
(b) Her personal right to equality before the law was violated.

Decision (HC):

1) Per Keane J.: agreed with Costello J. in the previous McKenna decision: held that the issue was non-justiciable (separation of powers issue).

Decision (SC):

1) Despite the differing reasons given in the majority judgments, there was consensus that the Government had interfered without any justification in the referendum process.

2) Three stages in the reasoning:

(a) Non-justiciable?

Hamilton C.J.: held that, despite the fact that SOP is “firmly entrenced” in the Constitution, this does not entitle the executive to breach the Constitution. The bar for breaching the Constitution is that of showing “clear disregard”.

Denham J.: all organs of the State are “subject to the Constitution”.

(b) Infringement of the Constitution?

Hamilton C.J.: there was an infringement, because the people are entitled to reach a decision “free from unauthorised interference”.

O’Flaherty J.: spending money on one side was to put the voting rights of some above those of others.

Denham J.: as a corollary to freedom of expression, people are entitled to a fair and democratic campaign.

(c) Ill-equipped?
As to the issue of whether a Court was ill-equipped to judge the effects of public spending, it was decided to opt for simple questions such as “does this breach fair procedures?”.

Criticism:

1) O’Neill criticises the lack of judicial consensus and clear reasoning – he suggests that Art. 5 should have been employed in the reasoning.

2) O’Higgins argues that voting rights of individuals weren’t affected (because every vote had equal weight on polling day); only those of campaigning groups were. He also fears that the outcome of the decision was less enthusiastic polling, pointing to the lacklustre Government campaign for the Treaty of Nice first time around.

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Riordan v. An Taoiseach (No. 2) (1999)

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Facts:

Pertained to the 19th Amendment of the Constitution (Belfast Agreement).

Issue No. 1: Riordan took a case on a minor technicality: Art. 46.5 provides that the President signs the bill “as law”. However, Art. 15.4.1 provides that the Oireachtas will not enact a law which is repugnant to the Constitution.

The problem is that a law amending the Constitution is necessarily repugnant to it.

Issue No. 2: Further, Riordan challenged the conditional nature of the referndum: the changes to Art. 2 and 3 would come into force only if the Government declared the Belfast Agreement to have come into force.

The applicant argued that this constituted a delegation of the power to amend.

Decision (SC):

1) Issue No. 1: took a pragmatic approach – the Amendment is necessarily repugnant; also, because the issue is related to the substance of legislation, the Courts have no function.

2) Issue No. 2: the mere fact that there was a condition did not mean that the decision had been taken from the people; the Government is entitled to propose at it wishes, within the confines of Art. 46.

Outcome:

1) Provided Article 46 is adhered to, the Courts are likely to overlook complex technicalities.

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Coughlan v. BCC (2000)

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Facts:

Pertained to the 15th Amendment of the Constitution (dissolution of marriage).

RTÉ permitted political parties (all of whom supported a “yes” vote) to issue party political broadcasts.

RTÉ also allowed for two non-party broadcasts (one for “yes”; one for “no”).

When the complainant complained to the Broadcasting Complaints Commission ruled against him.

He then took both to Court.

The respondents relied on s. 18(2) of the Broadcasting Authority Act 1960, which excludes Party Political Broadcasts from the obligation to provide broad fair programming s. 18(1).

Decision (SC):

1) Extended the McKenna principles to statutory bodies.

2) Keane J. held that it would be remarkable if a statutory body such as RTÉ were permitted to deviate from these principles, when the Oireachtas is bound by them.

Outcome:

1) Statutory bodies also obliged not to favour one side in terms of time or spending prior to a referendum.

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Re Article 26 and the Information (Termination of Pregnancies) Bill 1995

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Facts:

Pertained to the 14th Amendment of the Constitution (abortion).

President Robinson referred a bill which would provide legislation to flesh out the 14th Amendment, as had been voted for by the people in the 14th Amendment.

Counsel argued that the bill was contrary to natural law.

Decision (SC):

1) Per Hamilton C.J.: the people had spoken in a referendum, amended the Constitution, and the Courts have “at no stage recognised the provisions of the natural law as superior to the Constitution.”

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Morris v. Minister for Environment (2002)

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Facts:

Pertained to the 25th Amendment of the Constitution (abortion).
 Issue No. 1: The Amendment Bill contained a complicated mechanism whereby Article 40.3.4 would have contained reference to an Act promulgated in 2002.
 The applicant argued that this was constitutionally impermissible.

Issue No. 2: because the Amendment Bill mentioned the other legislation, it contravened Art. 46.4, which provides that a bill to amend shall contain no other “proposal”.

Decision (HC):

1) Issue No. 1: Kelly J. relied on reasoning in Riordan No. 2 – just like conditional amendments, there is nothing to prevent the people amending the Constitution to include a reference to an extraneous document.Per Hamilton C.J.: the people had spoken in a referendum, amended the Constitution, and the Courts have “at no stage recognised the provisions of the natural law as superior to the Constitution.”

2) Issue No. 2: Kelly J. held that the term “any other proposal” refers to something which, were the referendum passed, would become substantive law in the State. However, this bill simply referred to a separate piece of legislation, which still had to be passed by the Oireachtas in a separate act, and thus didn’t breach Art. 46.4.

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Referendum Commission

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- Established in response to the decision in McKenna No. 2 and to the recommendations of the Constitution Review Group.

- The aim is to spend public funding on an impartial explanation of the issues involved in each referendum.

- Consists of:
(a) A former HC/SC judge or the current HC president
(b) Ombudman
(c) Comptoller and Auditor-General
(d) Clerk of Dáil
(e) Clerk of Seanad

- Its functions are:

(a) Publish a general explanation of the content of the amendment;
(b) Publish arguments for a “yes” vote;
(c) Publish arguments for a “no” vote.

- Its fora are:

(a) TV;
(b) Radio;
(c) 2 national newspapers;
(d) Door-to-door leaflets.

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Procedural Challenges

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1) Provided the relevant constitutional procedures are adhered to, the judiciary will refuse to intervene in the amendment process. Slattery v. An Taoiseach (1993)

2) There is no duty to provide balanced information as to the referendum’s contents. Slattery v. An Taoiseach (1993)

3) Provided Article 46 is adhered to, the Courts are likely to overlook complex technicalities. Riordan v. An Taoiseach (No. 2) (1999)

4) Even spending of public funds in the framework of a referendum campaign was deemed outside the realm of the judiciary. McKenna v. An Taoiseach (No. 1) (1993)

5) Statutory bodies also obliged not to favour one side in terms of time or spending prior to a referendum. Coughlan v. BCC (2000)