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Irish Jurist
2012
Reflections on procedural rights in constitutional referenda
Blathna Ruane
Subject: Constitutional law. Other related subjects: Electoral process
Keywords: Broadcasting; Campaign expenditure; Constitutionality; Information; Ireland; Public
expenditure; Referendums
Legislation: Constitution of Ireland 1937
Cases: Coughlan v Broadcasting Complaints Commission [2000] 3 I.R. 1 (Sup Ct (Irl))
Hanafin v Minister for the Environment [1996] 2 I.L.R.M. 161 (SC)
McKenna v An Taoiseach (No.2) [1995] 2 I.R. 10 (Sup Ct (Irl))
*Irish Jurist 1 INTRODUCTION
The referendum process for amending the Constitution has given rise to considerable controversy
over the last two decades.1 Most of this has focused on arguments about ensuring balance in the
provision of public funding, information and broadcasting rights, as between the “Yes” and “No” sides
in referendum campaigns. The controversy has related mainly to the Supreme Court decisions in
McKenna v An Taoiseach (No. 2) (“McKenna (No. 2”), 2 as well as Hanafin v Minister for the
Environment (“Hanafin”) 3 and Coughlan v Broadcasting Complaints Commission (“Coughlan”). 4
McKenna (No. 2) saw the Supreme Court controversially intervening in what were previously
regarded as political/legislative issues, in order to enforce constitutional rights, and the two other
cases broadly followed its reasoning. Governmental efforts to address the practical difficulties raised
by these decisions through the Referendum Acts 1998 and 2001 have not proved very successful.
Although the right to information was not directly in issue in them, obiter dicta of the Supreme Court in
McKenna (No. 2), Hanafin and Coughlan suggest the possibility of potential challenges to the conduct
of referenda in regard to the provision of information. They also raise difficult questions regarding a
possible further extension of the court's power to intervene in an area which, up until McKenna (No.
2), was regarded as outside the judicial sphere, with consequential implications for the doctrine of the
separation of powers.
There were significant difficulties with the information process for the recent Twenty-Ninth and
Thirtieth amendments referenda, held on October 27, 2011, which demonstrated the potential for
further challenges relating to the adequacy of the information process. The proposed Twenty-Ninth
Amendment,5 which was passed, enabled reductions to be made to the salaries of judges, which
were *Irish Jurist 2 protected from reduction under Art.35.5 of the Constitution. The proposed
Thirtieth Amendment,6 which was rejected, was intended to provide the Oireachtas with enhanced
powers to conduct inquiries. The substantive issues relating to the referenda have been considered
elsewhere.7 The two referenda were held on the same day as the presidential election and a Dáil
bye-election, which dominated media and political attention. The Oireachtas debates on the
referendum Bills were guillotined and the referendum proposals were largely supported by the main
political parties. Both of these factors diminished the level of debate. It took some time for expert
commentators' views to emerge during the campaign, but ultimately, when they did, it became clear
that there were stronger arguments against the proposals than had been generally understood.
Information made available by the Referendum Commission (the “Commission”), established under
the Referendum Act 1998 to provide information to voters, was general in nature as required by the
legislation. The public phase of its information campaign began nearly half-way through the
referendum campaign.
There was considerable disquiet regarding the overall lack of information for voters in the 2011
referenda. Irish Times editorials complained about the limited time given to the public to decide, the
rushing of the Bills through the Oireachtas, the absence of parliamentary debate over the referendum
Bills and the consequential impact on public debate. They also commented on the resulting damage
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to the democratic process.8 The referenda resulted in a majority of 79.74 per cent in favour of the
proposal regarding judicial salaries and a majority of 53.34 per cent against the proposal on
Oireachtas inquiries.9 The defeat of the inquiries amendment caused surprise because an opinion poll
taken the previous week suggested it would be carried.10 This change coincided with a late enlivening
of the campaign (which included the intervention of eight former Attorneys General advocating
rejection of the proposals), as voters became more aware of factors relevant to their vote.
The even more recent referendum on the proposed Thirtieth Amendment of the Constitution (Treaty
on Stability, Coordination and Governance in the Economic and Monetary Union) Bill 2012, (the
“Fiscal Stability Treaty”), *Irish Jurist 3 held on May 31, 2012, was passed.11 There was controversy
over the accuracy of information provided by the Commission, which led to an unsuccessful
application for judicial review. In Doherty v Referendum Commission (“Doherty”) 12 the High Court
refused the relief sought but was unable within the time available to determine the accuracy of some
of the information provided.
The problems of providing information and ensuring its adequacy and accuracy, as well as ensuring
the adequacy of the time made available to consider the information, are part of a wider difficulty that
stems in part from the judicial decisions addressing claims that aspects of the process were not
democratic and where they identified new rights in the referendum process. The problems are also
partly due to inadequate political responses to those decisions but, additionally, to political challenges
that are outside the control of the politicians. These raise the question of what steps the Government
and the Oireachtas could take to resolve them, and how much further judicial interventions in this
area are appropriate or feasible.
JUDICIAL APPROACH PRE-McKENNA (No. 2)
Articles 46 and 47 are the relevant constitutional provisions that deal with constitutional referenda.
Article 46.2 provides that a referendum Bill must be submitted “to the decision of the people in
accordance with the law for the time being in force relating to the Referendum”. Under Art.47.4,
referenda must be regulated by law, subject to Arts 46 and 47. Decisions prior to McKenna (No. 2)
suggested that the courts would not interfere in the referendum process because they regarded it as
a purely legislative process in which they had no function.13
Procedural issues concerning referendum campaigns arose twice in 1992. On June 8, 1992, in
McKenna v An Taoiseach (No. 1), 14 Costello J. (as he then was) refused to restrain the Government
from using public funds to support a “Yes” vote on the Maastricht Treaty. He held that it was for the
Dáil to determine what funds ought to be voted for expenditure on information services and not for the
judiciary. He cautioned that judges should not become involved in determining “political and
non-justiciable issues”.15 He further commented:
“The extent of the role the Government feels called upon to play to ensure ratification is a matter of
concern for the executive arm of government, not the judicial. The Dáil decides what monies are to be
voted for *Irish Jurist 4 expenditure by the Government on information services (which would
include an advertising campaign in support of an affirmative vote in a referendum). Should the
Government decide that the national interest required that an advertising campaign be mounted
which was confined to extolling forcibly the benefits of an affirmative vote, it would be improper for the
courts to express any view on such a decision.”16
The plaintiff claimed that her right to communicate with other citizens on constitutional matters was
infringed. Costello J. rejected this, saying that she remained free to communicate her opinions,
irrespective of the Government's actions. He likewise rejected her claim that her right to equality in the
exercise of the franchise was breached:
“Each vote cast in the referendum by each member of the electorate would still be of the same
value--and this is not altered by the fact that some might be cast in a way which was influenced by the
methods of advocacy employed by the Government.”17
Costello J. also dismissed her claim of breach of fair procedures because he said that her argument
presupposed the manner in which some or all of the organs of Government should act to comply with
their constitutional obligations. He said she furthermore assumed that the Constitution conferred a
protected fundamental right on each citizen that the organs of Government would act in that manner.
He rejected her assumption and concluded:
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“As the right asserted in this part of the claim is not a personal right protected by Article 40, s.3
sub-s.1, and as it is not one which can reasonably be implied from any of those expressly protected in
the constitutional text, no infringement of a constitutional right has occurred.”18
The plaintiff also argued that the information given in a Government booklet regarding the Maastricht
Treaty was inadequate and misleading. Costello J. concluded that it was not appropriate for the
courts to adjudicate on this controversy, because such issues were a frequent element of the political
debate.19
Later, on June 18, in Slattery v An Taoiseach, 20 the Supreme Court refused a claim to restrain the
holding of the referendum until the plaintiffs were provided with certain factual information concerning
it. It held that it had no power to interfere in the operation of legislative and constitutional procedures
authorised by the Constitution. It also held that the Government was not obliged to provide
information on the effect of ratifying the Treaty and it could *Irish Jurist 5 not order the Government
to give public funds to opposition groups for their campaigns. Hederman J. quoted with approval a
statement of Henchy J. in Crotty v An Taoiseach 21 :
“There is, of course, nothing in the Constitution to prevent the Government or any persons or group or
institution from advocating or campaigning for or otherwise working for a change in the Constitution.”22
Egan J. commented on the more general issue of the provision of information to voters:
“I am satisfied, … that there is no obligation on the defendants at this stage to explain or attempt to
explain the meaning or consequences of all [the Treaty's] terms. In my opinion, it would be totally
wrong if the courts were to intervene in a process authorised by the Constitution.”23
McCarthy J. likewise referred to the absence of any statutory obligation to provide information. While
he recognised that an entitlement to be provided with information might be argued, he concluded that
judicial intervention was not warranted in that constitutional process.
McKENNA (No. 2)
On October 31, 1995, in McKenna (No. 2), the High Court examined a slightly different aspect of the
funding issue to that raised in Slattery. The plaintiff sought to prevent the defendant from using public
funds of £500,000, voted by the Dáil, for a publicity campaign to support the proposal for the removal
of the constitutional ban on divorce. A similar referendum had been defeated in 1986. Keane J. (as he
then was), rejecting the claim, referred to Arts 17 and 28 of the Constitution. Article 17 provides for
Dáil Éireann to pass votes or resolutions and to enact laws for the appropriation of public monies on
the recommendation of the Government. Article 28 provides that the executive power of the State
shall be exercised by or on the authority of the Government; that the Government shall be responsible
to Dáil Éireann; that the Government shall prepare estimates of the receipts and expenditure of the
State for each financial year, and present them to Dáil Éireann for consideration.
Keane J. agreed with Costello J.'s approach in McKenna (No. 1), where Costello J. held that the
plaintiff could not establish any constitutional misconduct and that the complaint was of political
misconduct, which did not concern the court. Keane J. recognised the “primary role of the executive
and the popularly elected assembly, to which it is responsible, in the raising and *Irish Jurist 6
expenditure of monies”.24 He later referred to their “paramount role” in this area and refused to
assume “a role which is exclusively entrusted to those organs of State, and one which the courts are
conspicuously ill-equipped to undertake.”25
Keane J. quoted from Brennan J. of the American Supreme Court in Baker v Carr, 26 where Brennan
J. identified political questions which should more appropriately be dealt with by the other arms of
Government:
“Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing a lack of the respect due co-ordinate
branches of government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.”27
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Keane J. went on to comment that:
“Judged by each of these criteria, with the exception of the penultimate one, the question in this case
is clearly one for resolution by the legislative and executive arms of government and not by the
judicial arm.”28
Thus, up to that point, the courts had steadfastly refused to become involved in scrutinising matters
they considered fell within the ambit of the executive and the legislature, and outside the judicial
sphere.
A totally different approach was taken on appeal in the Supreme Court. The majority (Hamilton C.J.,
O'Flaherty, Blayney and Denham JJ.) concluded that the Government's usage of public funding to
advocate a “Yes” vote was an unconstitutional interference in the referendum process. The grounds
varied but, broadly speaking, the rationale was that it offended constitutional principles of fair
procedures, equality and the right to a democratic process. The only dissent was a short judgment
from Egan J. He said that he could “see no harm whatever in the Government expressing strong
views in the matter even if the result may be to influence voters”.29 He observed that there was no
direction to the Government from the Oireachtas in regard to how the funds voted by the Oireachtas
were to be spent. He concluded that “… it is a matter solely for the executive arm of government to
decide how the money *Irish Jurist 7 should be expended. Its decision is not for the scrutiny of the
judicial arm of government.”30
There is no single majority ratio in McKenna (No. 2) and the reasoning adopted is somewhat unclear,
but, broadly speaking, it represented a major judicial shift in approach from the earlier decisions.
Consideration of the judgments raises the question of whether the outcome was justifiable in the light
of the constitutional text, irrespective of whether or not it may be regarded as desirable. The
judgments also raise deeper issues about the role of the courts in intervening in political issues and
whether their expansionist approach was appropriate in the referendum context. The majority
judgments may be considered in regard to certain key issues that were critical to their reasoning.
Jurisdictional issue and the role of governments in referenda
Centrally important issues were the views taken of the court's jurisdiction to intervene and the role of
Government in referenda. Hamilton C.J., with whom Denham J. (as she then was) agreed, referred to
dicta of FitzGerald C.J. in Boland v An Taoiseach, 31 where he said that the courts could not
“supervise or interfere with the exercise by the Government of its executive functions, unless 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”.32 He quoted dicta of Finlay C.J. in Crotty v An Taoiseach 33
(“Crotty ”) stating:
“… [W]here an individual comes before the Courts and establishes that action on the part of the
executive has breached or threatens to breach one or other of his constitutional rights that the Courts
must intervene to protect those rights but that otherwise they cannot and should not.”34
Hamilton C.J. relied on the principles in Crotty establishing the courts' jurisdiction and duty to
intervene where constitutional provisions are infringed. He then applied them in considering whether
the Government had acted in “clear disregard” of its constitutional powers and duties, although his
consideration of jurisdictional and substantive issues became intertwined. Hamilton C.J. referred to
Arts 17 and 28 and the dicta of Costello and Keane JJ. which regarded the issue as a “political”
matter. He said that those statements of Costello and Keane JJ. “were based on the concept of the
separation of powers which is fundamental to all of the provisions of the Constitution”.35 Referring to
Crotty, he emphasised the principle that such powers of the legislature and executive were not
absolute even in their own domain and were subject to the obligation to respect constitutional rights.
Blayney J. agreed with Hamilton C.J.'s judgment on the jurisdictional question of whether the court
could intervene.
*Irish Jurist 8 An important element of Hamilton C.J.'s conclusion that the Government had acted in
“clear disregard” of its duties was his view that the Government had no role in the conduct of the
referendum under Arts 46 and 47. Article 46.2 refers to the Bill being submitted to the people in
accordance with “the law for the time being in force relating to the Referendum”. The relevant law at
that time was the Referendum Act 1994. In interpreting Arts 46 and 47, his and Blayney J.'s
approaches were very literalist in focusing on the absence of specific references to the Government.
He also concluded, but without giving reasons, that the Government was not exercising the executive
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power of the State.
Hamilton C.J. accepted that it was within the Government's rights to give “factual information with
regard to the referendum proposal in expressing its views thereon and in urging its acceptance”.36 He
reiterated that the Government had no role in submitting the referendum Bill to the people and said
that there could not be any “unauthorised interference by any of the organs of State” 37 in the process
because the people were the guardians of the Constitution. He identified the rights to fair procedures
and equality, and said that the people are entitled “to reach their decision free from unauthorised
interference by any of the organs of State” and “in a free and democratic manner”.38 He then
concluded:
“The use by the Government of public funds to fund a campaign designed to influence the voters in
favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for
the amendment of the Constitution and infringes the concept of equality which is fundamental to the
democratic nature of the State.”39
Hamilton C.J. stated that the Referendum Act 1994 “does not allocate to the Government any role in
the giving of information or in the conduct of the referendum”.40 Subsequently he said that “neither the
Constitution nor the Referendum Act, 1994, envisaged any role for the Government in the submission
of the Bill by referendum to the decision of the people”.41 Hamilton C.J.'s and Blayney J.'s analyses
did not take account of the invariable central involvement of the Government in bringing forward
referendum proposals in the Dáil. They underplayed the role of the Government, with the
consequential effect that little weight was attached to it when they considered whether the rights of
voters were unconstitutionally infringed.
O'Flaherty J., however, recognised the Government's role in the process when he commented that a
Government brings a referendum proposal before the people “through its initiative”.42 Other judges
have also taken a rather different view of the Government's constitutional role in referenda. In a far
*Irish Jurist 9 more realistic analysis later in Coughlan, Keane J. drew attention to “the central role
allotted by the Constitution to the Oireachtas and by necessary implication, the government, in the
referendum process”.43 He argued that the framers must:
“have envisaged that, in practice, a referendum to amend the Constitution could be initiated only by
the government of the day, invariably consisting of one or more political parties, or by the opposition
parties or independent deputies or senators with the support of the government”.44
In Hanafin, Barrington J. referred to the leadership role of the Government in the context of a
referendum:
“It should also be remembered that the Government has the right and duty to lead the people.
Presumably the Government does not go to the trouble of formulating a proposal to amend the
Constitution and persuading the two Houses of the Oireachtas to accept it unless it believes that there
is some serious problem which needs to be addressed by the people.”45
Retired Chief Justice Thomas O'Higgins made an unprecedented intervention in 200146 following the
defeat of the first Nice Treaty referendum. He strongly criticised the majority judgments in McKenna
(No. 2) and went as far as suggesting that the matter should be revisited in the Supreme Court on an
Article 26 reference. Regarding the absence of a reference to the Government's role in Arts 46 and
47, he did not consider that as determinative of whether its funding action was valid or not. He
regarded the Government's action as an exercise of the executive power of the State that did not
need to be supported explicitly in the Constitution or by legislation. He argued that the Government
had a duty to campaign as it had done, if it thought people did not understand the proposal or that its
consequences were inaccurately portrayed.
These viewpoints contrast strongly with the analysis of Hamilton C.J. and Blayney J. in McKenna (No.
2), which analysis is at odds with the historical role of successive governments in referenda. The
conclusion that the Government had no role in the referendum process was important because it led
to Hamilton C.J.'s characterisation of its funding as an “interference” with the constitutional process. In
determining whether or not that “interference” was authorised, he also attached little significance to
the primacy of its role, along with the Oireachtas, under Arts 17 and 28, regarding expenditure of
public funds.
While neither the Government nor any Ministers are referred to in Arts 46 or 47, Ministers were
referred to in the relevant legislation, namely the *Irish Jurist 10 Referendum Act 1994. The Minister
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for the Environment was given extensive powers under that Act and the Minister for Finance likewise
had certain powers. The discretion given to the Minister for the Environment, as will be seen, has a
critical role in determining the important issue of the length of the referendum campaigns. Hamilton
C.J. acknowledged, in the earlier part of his judgment, the role of the Minister for the Environment in
ensuring that the procedures in the Act are followed and the Minister's power to introduce regulations
prescribing matters under the Act, except in regard to s.23. He noted that under s.23 the Oireachtas,
rather than the Minister, determined the content of the statement of information sent to voters.47
Hamilton C.J. recognised, however, that even though the Government was not referred to in s.23 this
did not mean that other information could not be provided.48
Whilst it might be argued that the roles of the Ministers under the Act could have been assigned to
another body, their roles reflect and are consistent with the central role of the Government in
instigating referenda. Given the role of the Government in the Oireachtas in bringing forward
referendum proposals, and the roles of both Ministers in the referendum process under the Act, it is
unclear why Hamilton C.J. concluded that the Government had no role in the conduct of the
referendum. Blayney J., in contrast, acknowledged that the Government had a duty in submitting the
issue to the people in accordance with the Referendum Act 1994, but he too concluded that it had no
other role.49
Articles 17 and 28
Hamilton C.J. referred to Arts 17 and 28 and the dicta from Costello and Keane JJ. regarding judges
not interfering on political questions, largely in the context of establishing jurisdiction. Following
Crotty, Hamilton C.J. said the court had to ascertain whether the Government's action was “within its
permitted areas of activity and function” 50 and whether the litigant's rights were being invaded. Crotty
requires the identification of a breach before the courts can intervene. Establishing whether there was
a breach required the court to identify how the Constitution allocated powers in regard to expenditure
and to establish the ambit of voters' rights, to see whether there was a right that was capable of being
breached, and then whether the level of intrusion on such right was of such a level as to be
unconstitutional. The determination of whether there had been a clear disregard by the Government
of its powers and duties, involves the harmonious balancing of competing constitutional principles.
Constitutional rights are often subject to explicit limitations, but also fall to be balanced against
competing rights and values, a process reflected in the application of a harmonious approach to
interpretation. This required consideration of the impact of Arts 17 and 28, which are themselves
constitutional values, that likewise have to be respected.
*Irish Jurist 11 Hamilton C.J. gave relatively little weight to Arts 17 and 28 when deciding the ambit
of voters' rights, whether there had actually been a breach and whether the court should exercise its
jurisdiction to intervene. He concluded that there could be no interference with the crucial role of the
people in amending the Constitution because it was such an important function and because they are
guardians of the Constitution. He argued that the people were entitled to reach their decision “free
from unauthorised interference by any of the organs of State” 51 which the people themselves had
created. His approach in this regard was clearly influenced by his view that the Government had no
role under Arts 46 and 47 or the Referendum Act 1994, and that its action was “unauthorised” and he
attached little or no weight to Arts 17 and 28 in that context. While he clearly set out the importance of
the people's role in referenda, he did not really explain how the competing values of Arts 46 and 47
on the one hand and Arts 17 and 28 on the other were to be balanced against one another in deciding
the ambit of voters' rights. O'Flaherty J. did not refer at all to Arts 17 and 28 or explain how he
counterbalanced them with voters' rights. Blayney J. agreed with Hamilton C.J. on the jurisdictional
issue. In deciding if the Government was entitled to provide funding, he likewise did not refer to Arts
17 and 28.
Whereas Hamilton C.J.'s and Blayney J.'s judgments took a very literalist interpretation of Arts 46 and
47 regarding the role of the Government, they were notably less literalist in identifying voters' rights.
The rights of the voters during the pre-vote phase, which they held were wrongly infringed, are not
specified or even readily implied from the text or from a harmonious interpretation, which takes
account of Arts 17 and 28. It is clear from Arts 47.1, 47.2 and 47.3 that each vote cast carries equal
weight. However, Arts 46 and 47 say nothing, other than in Art.46.2, about the phase of the process
after the Bill leaves the Oireachtas and before the vote. Article 46.2 provides that the Bill is to be
submitted “to the decision of the people in accordance with the law for the time being in force relating
to the Referendum”. Article 47.4 provides that, subject to Arts 46 and 47, the referendum is to be
regulated by law. The constitutional wording thus makes no explicit reference to voters' rights during
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the pre-vote referendum campaign. However, the majority interpreted the prevote stage of the
referendum as involving a procedural protection, to the extent of overriding the exercise by the
Government and Oireachtas of their decision with regard to expenditure under Arts 17 and 28.
This approach was strongly criticised by retired Chief Justice O'Higgins52 who argued that the majority
in McKenna (No. 2) had “confused” the right to vote on polling day with rights in the earlier pre-poll
phase, when voters could participate in the debate on the proposal. Whilst he accepted that voters
need information and time to consider a proposal, he did not think that the Constitution recognised
groups of voters, as some of the majority's language suggested. He also did not believe that the
Government had breached an alleged right to equality in campaigning.
*Irish Jurist 12 In contrast to McKenna (No. 2), a somewhat different approach to construing
constitutional provisions was taken by Geoghegan J. in the context of determining whether privilege
for statements made in the Oireachtas was restricted by individual rights under Art.40.3. In Attorney
General v Hamilton (No. 2), 53 Geoghegan J. considered the effect of the right to a good name under
Art.40.3 on the extent of parliamentary privilege under Arts 15.12 and 15.13, attaching to statements
made in the Oireachtas. He expressed the view that, having regard to the history relating to the
privilege, it might reasonably be expected that any qualification of Arts 15.12 and 15.13 would be in
an express provision to that effect. Such an approach, if adopted in McKenna (No. 2), would have
given significant weight to the absence of an explicit limitation of the rights of the Oireachtas and the
Government under Arts 17 and 28, in regard to voters' rights in the pre-poll phase.
Further, albeit in the somewhat different circumstances of socio-economic rights, other decisions
have displayed a far greater reluctance to interfere with the primacy of the Government and the
Oireachtas on public finance issues and in identifying rights. In 1994, MacMathúna v Attorney
General 54 concerned a complaint by a married couple that their tax-free allowances had been
abolished, whereas other categories of parents still had tax-free allowances. They impugned certain
taxation and social welfare legislative provisions on the grounds of alleged breach of their right to
equality under Art.40.1 and the rights of the family under Art.41. Referring to the policy issues
involved in the decision about social welfare supports, Finlay C.J. stated:
“… these are peculiarly matters within the field of national policy, to be decided by a combination of
the executive and the legislature, that cannot be adjudicated upon by the courts.”55
A restrictive approach to interference was likewise evident in 2001 in the majority judgments in T.D. v
Minister for Education, 56 concerning separation of powers issues relating to expenditure by the
Government on disadvantaged children. The majority (Keane C.J., Murphy, Murray and Hardiman
JJ.), refused to grant mandatory orders which would have required expenditure to enforce
socio-economic rights because to do so would infringe the separation of powers, since it raised the
possibility of the courts' directing the exercise of those powers. Hardiman J. made the strongest
general observations on the principle of the separation of powers in the context of public expenditure:
“In my view, the courts in their own interest and for the protection of their legitimacy in the discharge
of their proper role, should be reluctant even to appear to trespass on the spheres of the political
organs of government.”57
*Irish Jurist 13 He commented,58 citing Arts 15.2.1°, 17.2, 28.2 and 28.4.1°:
“These articles locate the power to make laws and to appropriate public monies to particular purposes
in the non-judicial arms of government. The exercise of the executive power is vested in the
Government which is responsible to Dáil Éireann. On the ordinary principles of construction I believe
that this responsibility is an exclusive one; the Government is not in this respect responsible to any
other person or body. As appears from the citation earlier in this judgment from Buckley & Others
(Sinn Féin) v Attorney General [1950] I.R. 67, these articles, combined with Article 6, not merely set
forth the distribution of powers, but they ‘require that these powers should not be exercised
otherwise’.”59
In a dissenting judgment in T.D., Denham J. argued that the duty to enforce constitutional rights
prevailed over the principle of the separation of powers, a view that largely reflects the overall
approach of the majority in McKenna (No. 2). Denham J. argued:
“… [T]he powers and duties of each organ of State extend across theoretical lines of separation and
checks and balances established in the Constitution breach a rigid concept of the separation of
powers. The doctrine of the separation of powers has to be balanced with the role given to the courts
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to guard constitutional rights.”60
She further argued:
“In a situation, thus, where there is a balance to be sought between the application of the doctrine of
the separation of powers and protecting rights or obligations under the Constitution, the courts have a
specified constitutional duty to achieve a just and constitutional balance. Whilst acknowledging the
separation of powers, and the respect which must be paid to all the great organs of State, if it is either
a matter of protecting rights and obligations under the Constitution or upholding the validity of a
statute then the Constitution must prevail.”61
Hardiman J. took a very different view. He referred to the separation of powers as itself a fundamental
principle of the Constitution62 and commented that it is not “in any general sense a porous one”.63 He
said that the Constitution “does not attribute to any of the branches of government an overall, or
residual, *Irish Jurist 14 supervisory power over the others”.64 Denham J.'s approach in T.D. was a
minority view, suggesting that her view of the primary obligation on the court, which is also implicit in
her views in McKenna (No. 2), may be doubted.
The claim in T.D. to a mandatory order to enforce a claim to a socio-economic right which
necessitated expenditure obviously posed a far greater challenge to the separation of powers than
the far less interventionist declaratory remedy of unconstitutionality of expenditure made in McKenna
(No. 2). Nevertheless, Hardiman J.'s views in T.D. illustrate a much more restrained approach to
interference in a political area in which the Government and Oireachtas have primacy than was taken
by the majority in McKenna (No. 2).
The majority's approach in McKenna (No. 2) in its recognition of broad rights under Arts 46 and 47
also differs markedly from the stricter attitude reflected in a passage quoted with approval by
Hardiman J. in T.D., from the judgment of White J. of the United States Supreme Court in Bowers v
Hardwick 65 made in the context of due process. It emphasised the importance of rights identified by
the courts as being firmly rooted in the wording of the Constitution:
“The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognisable roots in the language or design of the Constitution.
That this is so was painfully demonstrated by the face-off between the Executive and the Court in the
1930s which resulted in the repudiation of much of the substantive gloss that the Court had placed on
the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great
resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the
category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself
further authority to govern the country without express constitutional authority.”66
Hardiman J. continued:
“It is possible to agree with these words without necessarily endorsing everything said in this case.
It is perhaps natural that much legal thinking on the separation of powers has as its primary focus the
immunity of the judiciary from improper pressure or interference from the other organs of government.
This case brings into sharp focus the fact that the spheres of those other organs are also
constitutionally mandated and that the division of powers is in itself a high constitutional value
directed at the preservation of the people from the accumulation of excessive power by any one
organ or its members.”67
*Irish Jurist 15 Fair procedures and democratic procedures
The majority in McKenna (No. 2) relied on a relatively narrow procedural approach in determining
what constitutional democratic principles relating to referenda required. Blayney J. concluded that the
Government would be acting “unfairly” by using public funding because the Government had “not held
the scales equally between those who support and those who oppose the amendment. It has thrown
its weight behind those who support it.” 68 The two cases which were based on rights under Art.40.3
cited by Blayney J. in support of his conclusion, related to powers of an essentially judicial nature
which were not on point. They related to situations where the decision-makers had to act judicially,
namely, in the conduct of an inquiry before the Dáil Committee of Public Accounts (In Re Haughey 69
), and the conduct of a meeting in which dismissal of a director from the board of a company was
being considered (Glover v B.L.N. Ltd). 70 Blayney J. argued that fair procedures also applied to the
Page9
more important issue of amending the Constitution.
Kelly 71 has queried the appropriateness in McKenna (No. 2) of applying “the concept of fair
procedures - designed to ensure the fair administration of justice …” into the referendum context. In a
referendum, the Government instigates a proposal to amend the Constitution in furtherance of a
policy issue which it manifestly supports, and is not engaged in a process of administering justice or
in conducting inquiries. The right to fair procedures in the administration of justice, or where there is a
duty to act judicially, is a personal right under Art.40.3. Blayney J.'s application of the principle from
those spheres into the referendum context seems questionable, particularly where it is not clearly
explained. The exact textual basis for procedural rights asserted by Hamilton C.J. and Blayney J. is
unclear, since neither of them identified which Article they relied upon when identifying the obligation
to adopt fair procedures in referendum processes. O'Flaherty J. did not mention fair procedures as
such.
The majority's approach in identifying these rights without explicitly identifying their basis contrasts
with more cautious views adopted in another case regarding the identification of new personal rights.
In 1998 in IO'T v B, Keane J. (as he then was), in a dissenting judgment in the context of adoption,
referred to the need for judicial restraint in identifying new unenumerated rights,
“… save where such an unenumerated right has been unequivocally established by precedent, as, for
example, in the case of the right to travel and the right of privacy, some degree of judicial restraint is
called for in identifying new rights of this nature.”72
*Irish Jurist 16 Ironically Hamilton C.J. himself asserted in the same case:
“In view of the caution to be exercised with regard to the duty of ascertaining and declaring what are
the personal rights of the citizen, other than those actually specified in the Constitution, it is incumbent
on a court declaring such right to do so in clear and explicit terms, and it is only a right which has
been so declared, that can be regarded as a right guaranteed by the Constitution.”73
A major part of Denham J.'s reasoning related to “the right to a democratic procedure in referenda”.74
Noting that Ireland is a democratic State, she commented:
“The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a
democracy free from governmental intercession with the process, no matter how well intended. No
branch of the government is entitled to use taxpayers monies from the Central Fund to intercede with
the democratic process either as to the voting process or as to the campaign prior to the vote.
This is an implied right pursuant to Article 40, s.3 which harmonises with Article 5, Article 6, s.1,
Article 16, Article 40, s. 1, Article 47, s.3 and is in keeping with the democratic nature of Bunreacht na
hÉireann.”75
Denham J. thus recognised a new implied personal right under Art.40.3, which is very similar to that
which Costello J. had said did not exist It may be noted that Denham J. did not include Arts 17 and 28
in the list of Articles to be harmonised. Denham J.'s overall approach in McKenna (No. 2) is similar to
that which she took in T.D., where she gave precedence to the enforcement of constitutional rights
over the doctrine of the separation of powers. Her approach in that regard was a minority view,
suggesting that her similar approach on this issue in McKenna (No. 2) may not be shared.
The existence of rights to fair procedures and a democratic procedure in referenda does not
self-evidently mean that the Government and Oireachtas have no right to provide funding solely in
support of a proposal. No alternatives to the total ban on using public funding (other than on an equal
basis) were considered by the Supreme Court. In applying the principle of fair or democratic
procedures so as to enforce democratic rights, the majority's approach ironically took no account of
the democratic deficits that could occur in consequence in the referendum process. The result of
McKenna (No. 2) is that, where a government with a strong electoral mandate brings forward a
referendum proposal, it is unable to expend funds advocating in favour of the proposal, without
providing an equal amount to what may be a tiny minority opposed to the proposal. No other
participant in the referendum process is subjected *Irish Jurist 17 to that restriction, even though
one-sided funding from other participants in the referendum process can likewise impact on the
democratic conduct of the campaign. As will be seen, the reasoning of McKenna (No. 2) was also
later applied in Coughlan to require equality in uncontested broadcasting coverage for each side. This
can also have the effect of distorting the democratic quality of the campaign by making opposition to a
proposal attractive to some groups so as to secure publicity out of proportion to their level of support.
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Equality
The principle of equality was a major element of the majority's judgments. Article 40.1 provides that all
citizens shall, as human persons, be held equal before the law but the State's enactments can have
due regard to differences of capacity, physical and moral, and of social function. Denham J. referred
to the right of the citizen “to be treated equally. This includes the concept that in the democratic
process, including referenda, neither side of an issue will be favoured, treated unequally, by the
government.”76 Denham J. did not consider the equality in the casting of the vote itself as an answer:
“While there is no barrier created by the Government to people voting ‘no’ in the upcoming
referendum, that does not take into account the importance of media and communications in society
today. To fund one side of a campaign in a referendum so as to enable media coverage and
communications to promote a specific outcome, is to treat unequally those who believe to the contrary
whether they be a majority or a minority.”77
She quoted from the judgment of Budd J. in O'Donovan v Attorney General 78 on the application of the
principle of equality in political matters, and asserted that “the spirit of equality applies to the
referendum process”.79 In 1961, O'Donovan had applied Art.40.1 in recognising the right to equality in
the franchise, and just as Costello J. held in McKenna (No. 1), the actual votes of each voter must be
treated equally. However, the application of the equality principle in McKenna (No. 2) in the pre-vote
phase to the Government's funding in a referendum was new.
Unlike Denham J., neither Hamilton C.J., O'Flaherty nor Blayney JJ. specifically referred to Art.40.1
as the basis for the right to equality. Hamilton C.J. argued that equality is “fundamental to the
democratic nature of the State”.80 O'Flaherty J. said that the Government could not spend money
favouring one side to the “detriment of those opposed”.81 He held that it put the voting rights of one
class of citizens above those of the other class and that:
*Irish Jurist 18 “The public purse must not be expended to espouse a point of view which may be
anathema to certain citizens who, of necessity, have contributed to it.”82
Other than Arts 46 and 47 and a general reference to equality, O'Flaherty J. did not cite any particular
Article or any case law as the basis for his conclusions. As has been pointed out,83 it is unclear if
Hamilton C.J., O'Flaherty or Blayney JJ. grounded equality on Art.40.1 or another separate
constitutional right to equality. If it was based on another separate right, it is unclear if that right is
subject to the qualifications contained in Art.40.1. Blayney J. related it to the principle of constitutional
justice.
The majority appeared to consider that equality automatically trumped the powers and duties of the
Government. Their approach may be contrasted with that of Barrington J. (who was not a member of
the Court in McKenna (No. 2) ) in his dissenting judgment in Coughlan. He rejected the application of
the equality principle under Art.40.1 during the pre-vote phase in regard to whether political leaders
had to be treated the same way as other persons, in the somewhat different context of broadcasting
rights:
“But it is also right and proper that the special position of political leaders should be recognised. In my
view there is, in principle, no constitutional inequality or unfairness and no breach of democratic
values in allowing political leaders access to the airwaves at referendum time on conditions dissimilar
to those granted to private citizens but related to their social function as political leaders of the
people.”84
This approach is similar to a general principle identified in Kelly from various cases, in regard to
interpreting Art.40.1, and in determining whether certain types of discrimination are necessarily
unconstitutional. Kelly argues that discrimination “may be legitimate if it serves a value which the
Constitution upholds”.85 This principle is consistent with the doctrine of harmonious interpretation of
the Constitution. Kelly cites,86 among other cases, Pine Valley Developments Limited v Minister for
Environment, 87 as an example of that principle, where the other constitutional value was the
separation of powers. There a company had successfully challenged a planning decision and the
result revealed a flaw in other planning decisions. Legislation was introduced to give retrospective
validation to the other planning decisions but the Government argued that it excepted the decision
that had already been successfully impugned. The Supreme Court held that the discrimination was
not invalid. Henchy J. stated that,
*Irish Jurist 19
“… the primary and overriding purpose of the section was to avoid an
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unconstitutional invasion of the judicial domain by attempting to give validity to any planning
permission which the Courts may have held to be lacking in validity”.88
This suggests that whereas the circumstances for each situation will differ, the equality principle does
not automatically trump other values. In McKenna (No. 2), having identified the voters' rights under
Arts 46 and 47, the majority could then have tested whether the degree of intrusion on voters' rights
was in all the circumstances valid having regard to the constitutional values of Arts 17 and 28. In this
context, no consideration was given to the question of the reasonableness of the level of expenditure
by the Government.
Denham J.'s judgment in McKenna (No. 2) adopted the phrase “the spirit of equality” from the
judgment of Budd J. in O'Donovan, in which Budd J. referred to the right to equality under Art.40.1
and equality in political matters. However, the textual context of O'Donovan was somewhat different
to that in McKenna (No. 2). O'Donovan concerned the constitutionality of arrangements establishing
the electoral constituency boundaries under Art.16.2.3°. There was already a strong textual basis for
applying the principle of equality in Arts 16.2.3° (the ratio of deputies to the constituency population
must be the same as far as practicable) and 16.1.4° (only one vote for each person). Budd J. then
further construed Art.16.2.3° in light of Art.5 and Art.40.1, from which he derived the concept of the
“spirit of equality”, which he applied further in interpreting the degree of discrepancy allowed under
Art.16.2.3°. Large discrepancies in ratios among constituencies would have meant that some votes
counted for significantly less than others.
In contrast, there was a much weaker basis in McKenna (No. 2) for deriving from the wording of Arts
46 and 47, an obligation to observe the principle of equality in the pre-vote phase. The only reference
to the pre-vote phase is in Art.46.2 which provides that the referendum has to be put to the people “in
accordance with the law for the time being in force relating to the Referendum” and the requirement in
Art.47.4 that, subject to Arts 46 and 47, the referendum has to be regulated by law. Neither of these
suggests that equality necessarily applies in the pre-vote phase.
Furthermore, Budd J.'s approach did not necessarily require other rights to yield to the principle of
equality in the political process. He accepted that there could be a departure from the principle where
the wording indicated a different principle. Immediately following the passage quoted by Denham J.,
Budd J. said:
*Irish Jurist 20 “If a departure from the principles to be implied from those Articles was intended,
one would at least expect to find such form of words used as would clearly indicate a different
principle. On examining sub-clause 2,3, nothing of the kind is apparent. On the contrary, the whole
object of the clause would seem to be designed to achieve the spirit of equality to be found in these
other Articles. Thus, all of the relevant clauses harmonise. This all leads to the conclusion that any
construction of sub-clause 2,3, which would have the effect of destroying the dominant principle of
equality should be rejected.”89
Applying that harmonious approach in McKenna (No. 2), while there is nothing in Arts 46 and 47 to
suggest otherwise, the wording of Arts 17 and 28, and the principle of the separation of powers,
suggest that a cautious approach should be taken in identifying rights that restrict the designated
powers of the Government and the Oireachtas.
The majority judgments also did not consider the inequalities that their ruling could produce, such as
where other participants in the referendum campaign expend large funds, with the result that the
overall funding available to the two sides ends up being unequal. This could readily occur where, for
example, a wealthy opponent of a proposal decides to expend large sums supporting a “No”
campaign. Nor did the judgments consider how an overall balance could ever be achieved given the
rights of disparate individuals to expend sums as they see fit. As will be seen, coupled with the impact
of Coughlan, which requires that television broadcasts must represent the “Yes” and “No” viewpoints
equally, the effect of McKenna (No. 2) is that it enables a very small group with no electoral
accountability, to obtain a disproportionately large access to the media and publicity.
Freedom of expression
Only Denham J. concluded that there had been a breach of the right to freedom of expression by
funding one side to the disadvantage of the other. However, it is unclear how freedom of expression
was interfered with, when, as Costello J. pointed out in McKenna (No. 1), opponents of the proposal
remained free to articulate their views during the campaign and voters remained free to express their
Page12
views at the ballot box.
Even if it were to be contended that there was a right to a democratic process of will-formation and
that funding by the Government in favour of the *Irish Jurist 21 proposal should be prevented
because voters have a right not to be “swamped” while in the process of forming their opinion, that
prevention would still not protect such a right. Voters would in any event be at risk of being
“swamped” by advertising by other participants (individually or collectively) in the referendum
campaign.
Role of expenditure
Whereas the majority justified their approach by arguing that the Government's funding was not
consistent with constitutional democratic principles, it is not obvious that there is anything inherently
“undemocratic” about the Government's funding of a “Yes” vote. As the majority recognised, the
Constitution contains elements of both direct and representative democracy. Articles 46 and 47 are
specific abut the operation of direct democracy in the vote itself but they say nothing about excluding
actions by a representative democratic structure in the pre-vote phase. In the absence of clear
wording to the contrary, what Hamilton C.J. regarded as “unauthorised interference” could also be
construed as legitimate action taken by a democratically elected government in pursuit of a policy for
which it, along with the Oireachtas, was given constitutional authority. The position of the Government
is distinct from other groups participating in the referendum process because it has the function and
democratic mandate to lead the people and it remains fully accountable at the ballot box.
The majority's reasoning that the funding was unconstitutional is unclear in another respect. Hamilton
C.J., and O'Flaherty J. accepted that the Government was entitled to give factual information, express
its views and urge acceptance. Denham J. referred to the “right and duty”90 of the Government to give
information to voters, suggesting a corresponding right to be given it. They accepted therefore that
the Government was entitled to seek to influence voters while they were reaching their decision, but
before they cast their votes. Accordingly, the action of influencing voters was not in itself
constitutionally objectionable. The unconstitutionality in the majority's view lay in the expenditure of
public funds, to which as taxpayers they had contributed, for the purpose of arguing against a
proposition with which some voters disagreed. However, it is not clear how the additional factor of
expenditure from public funds of itself rendered unconstitutional something that was otherwise
constitutional. Public finances are frequently deployed by governments from the Central Fund to
benefit certain categories of people, in ways that may be strongly opposed by some taxpayers, and
which may even have adverse effects on them. However, that of itself does not necessarily render
decisions implementing them justiciable or unconstitutional.
Furthermore, the majority argument on expenditure from public funds is not consistent. O'Flaherty J.
held that the Government was entitled to spend money giving information to the public on the
implications of the constitutional amendment and “to campaign for the change and the individual
members *Irish Jurist 22 of the Government are entitled either in the personal, party or ministerial
capacities to advocate the proposed change”.91 Since governments are unable to spend monies on
advertising campaigns, but are entitled to argue in favour of a “Yes” vote, Ministers become obliged to
spend far more time away from their ministerial duties canvassing support, which also incurs an
indirect cost in public funds. Later, in Hanafin, O'Flaherty J. accepted that the Government could avail
of the energies of civil servants but declined to indicate the extent to which it was permissible on the
grounds that it would be invidious to do so.92 Barrington J. in Hanafin 93 and Keane J. in Coughlan 94
recognised that such activities would also involve expense for taxpayers. Although O'Flaherty J. in
McKenna (No. 2) held that no monies could be expended by the Government, his conclusion did not
prevent the Government from using State cars, or to use the radio, television and print media.
However, he gave no clear dividing line between acceptable and unacceptable use of State
resources.95
Analogy with elections
O'Flaherty J. asserted96 that no one would suggest that a government could spend exchequer monies
in a direct manner to secure re-election, and a referendum was no different. Few would disagree with
the first part of that argument, but O'Flaherty J.'s assertion of an equivalence between a government
spending public funds to advocate in favour of a referendum proposal and spending public funds to
support its own re-election is questionable, since it ignores an important distinction between the two
Page13
situations. In the former, an elected government would be expending money in actually carrying out
its constitutional duty as a government to advance a policy in a manner which it considers to be
appropriate in the people's interests. When engaged in that process, the role of a democratically
elected government imposes rights and duties on the Government, with accountability for their
discharge at the next election. In an election, a government would not be carrying out a constitutional
duty at all, but expending money to be re-elected, and for a purpose that inevitably has a very large
element of self-interest, namely that of securing re-election. Securing re-election is not a function of
government, whereas proposing a referendum unquestionably is a function of government.
Overview of McKenna (No. 2)
The foregoing issues indicate that an important element of the majority's reasoning involved a rather
questionable view of the Government's role in the referendum process. Furthermore, they took a
somewhat sweeping approach in their interpretation, rather than one clearly and harmoniously *Irish
Jurist 23 anchored in the constitutional text. They banned all governmental funding unless an equal
amount was given to the referendum opponents (who might be miniscule in number), without
considering whether and on what basis some limited funding could be made available. Their
approach contrasts with other dicta from members of the Supreme Court, favouring a more cautious
approach on justiciability and regarding the identification and enforcement of new constitutional rights,
in the context of expenditure and separation of powers issues. That caution is salutary because
McKenna (No. 2) has posed considerable problems for politicians trying to legislate for the
referendum process and serious wider democratic deficits in the process have followed in its wake,
which are discussed further below.
HANAFIN
McKenna (No. 2) laid the foundation for Hanafin and Coughlan. 97 Following McKenna (No. 2), the
Government withdrew its public funding a week before the divorce referendum poll took place.
Subsequently, in Hanafin, the petitioner brought a referendum petition under ss.42 and 43 of the
Referendum Act 1994, the only mechanism for challenging the outcome. Under s.42, an application
for leave to present a petition must be made not later than seven days after the official publication of
the provisional referendum certificate recording the result. The petitioner argued that the
Government's campaign had been unconstitutionally funded, rendering the referendum invalid.
Hanafin highlighted the practical problems, due to evidential issues, of enforcing the rights identified
in McKenna (No. 2). Section 43 requires a plaintiff to establish that the referendum was “materially”
affected by, inter alia, the “failure to complete or otherwise conduct the referendum in accordance
with this Act”.98 The Supreme Court (Hamilton C.J., O'Flaherty, Blayney, Denham and Barrington JJ.)
accepted the High Court's view that there was insufficient evidence to conclude that the outcome of
the referendum was materially affected by the funding and it was unwilling to accept secondary expert
evidence of voting behaviour to do so. Primary evidence to establish how people voted was
unavailable because of the secrecy of the ballot. Hamilton C.J. applied a principle adopted under
North Dakota law in Larkin v Gronna 99 :
*Irish Jurist 24 “The people are presumed to know what they want, to have understood the
propositions submitted to them and all its implications …”100
and Hamilton C.J. considered that the presumption was not rebutted on the evidence.
The materiality test is very restrictive, but is justifiable to prevent the votes of the people being
overturned for anything other than grave reasons. The difficulties of adducing primary evidence
impose major challenges for petitioners. Together with the materiality test, they pose difficult hurdles
in enforcing the right identified in McKenna (No. 2). Barrington J. in Hanafin pointed out that the grant
of declaratory relief in McKenna (No. 2) had produced a remedy for the unconstitutionality, in that the
funding had been stopped.101 O'Flaherty, Blayney and Denham JJ. referred to the fact that voters had
a week before polling day to take cognisance of the decision. However, if the judgments in McKenna
(No. 2) had been delivered even closer to polling day, it is unclear what remedy the petitioner would
have received. The difficulties associated with giving relief prior to the vote, such as injunctive relief,
are discussed later in this article.
Another notable development in Hanafin was that Hamilton C.J., obiter, identified further voters' rights
in the pre-vote phase, including the right to information:
Page14
“The submission to the people of a proposal to amend the Constitution must of necessity be made in
a manner which has regard to the democratic process and the constitutional rights of the citizens to
participate therein and in particular must have regard to the right of the people to be informed with
regard to the nature of the issue involved and its implications; the right of freedom of discussion
thereon; the right of people to persuade and to be persuaded; the right of the people to campaign,
either individually or in association, in favour of or against the proposal; the right of the people to vote
thereon in the secrecy of the ballot and to have the proposal enacted into law if the majority of the
votes cast shall have been cast in favour of the proposal.”102
COUGHLAN
Further development of the pre-vote requirements for referenda103 followed in January 2000 in
Coughlan. The Supreme Court (Hamilton C.J., Denham, *Irish Jurist 25 Keane, and Barron JJ.,
Barrington J. dissenting) examined R.T.E.'s obligations to ensure fairness in providing party political
or uncontested broadcasts during referendum campaigns, and concluded that R.T.E. had to afford
equal opportunities for supporters and opponents. However, Denham J. said that this did not require
a “mathematical” equality.104 She acknowledged the important role of public debate in the process and
referred to the Government's own duty to inform the people of its views in the Oireachtas and the role
of political parties.105 She said the State could allocate funding, “expended in a fair and constitutional
fashion”,106 to enable a full debate.
In a dissenting judgment, Barrington J. quoted with approval Hamilton C.J.'s view of the right of the
people to be informed. Barrington J. also referred to the importance of people being “well informed
and well advised”.107 He said:
“It may also be legitimate for the government to provide equal finance for groups supporting as for
groups opposing the referendum proposal. It may also be appropriate for the government to establish
a neutral commission to ensure that the case for and against the referendum proposal is fairly stated.”
108
Barrington J. considered that political leaders had the principal role in providing advice, and should
lead and persuade people to achieve the common good.109 The application of McKenna (No. 2)
principles in Coughlan reinforced some of the problems caused by the removal of Government
funding in favour of the proposal. It gives a potential publicity bonanza to small groups opposing the
proposal, out of proportion to the actual support the groups reflect. This encourages opposition for
extraneous purposes and gives an inaccurate picture of the degree of true opposition to the proposal.
From various obiter dicta in McKenna (No. 2), Hanafin and Coughlan, it seems likely that there is an
implied constitutional right to information. While both Denham and Barrington JJ. referred to the
important role of public debate in informing the public, this has not proved a reliable source of public
information, as has been shown in the past, and most recently in the 2011 referenda.
CHALLENGE TO 2011 REFERENDA
In 2011, on the day before polling, an ex parte application was made to the High Court by lay litigants
seeking to prevent the referenda from proceeding.110 *Irish Jurist 26 They argued that Art.46.4
prohibited two “proposals” being put to the people on the same day and alleged that proper
procedures were not followed because the Minister for Justice had published the date of the
referendum in August before the Bills had proceeded through the Oireachtas. They also complained
about lack of knowledge and that having to vote on two proposals at the same time was excessive.
Kearns P. refused relief, saying that the applicants had misconstrued Art.46.4. On appeal, Denham
C.J. said there was nothing in Art.46.4 to prevent more than one proposal being put on the same day,
and there was no basis for claiming that proper procedures were not followed.111
ROLE OF PARLIAMENTARY DEBATE IN PROVIDING INFORMATION IN THE 2011
REFERENDA
Like the Supreme Court, the All-Party Oireachtas Committee on the Constitution, in their Sixth
Progress Report dealing with the Referendum (November 2001) (the “2001 Report”) concluded that
there should be full debates when a referendum Bill is considered by the Oireachtas, so as to inform
the public about the arguments for and against a proposal.112 Nevertheless, the debates on the two
Page15
referendum Bills in 2011 were guillotined. There were changes made to the text of the proposed
amendments late in the legislative process. There was a high level of consensus among the main
political parties in supporting the referenda. Consequently, the information value of these debates for
the public was reduced. A similar situation occurred in September 1997, when the cabinet
confidentiality referendum Bill was rushed through the Oireachtas to allow that referendum to be held
with the presidential election that year.113
SELECTION OF POLLING DATE
Another important factor in informing the public about a referendum proposal is the selection of the
polling date, which determines the length of the campaign. Under s.10(1) and (2) of the Referendum
Act 1994, when a Bill containing a proposal to amend the Constitution is passed, the Minister for the
Environment114 must make an order appointing the polling day which “shall be not less than thirty
days and not more than ninety days after the date of the order”. Beyond maximum and minimum
constraints, the determination of the period is left to the Minister. The 2001 Report recommended
increasing the maximum campaign period to 120 days.115 It also recommended that, other than in
exceptional cases, the lower limit “should not be otherwise resorted *Irish Jurist 27 to because it is
not ordinarily adequate”.116 However, no change was made in the Referendum Act 2001. In 2011, the
period allowed for the campaign was just 31 days. The order was made on September 26,117 fixing
polling day for October 27.
An argument may be made that linking referenda to other elections can be justified on the grounds
that it reduces the cost and encourages a higher turnout. Cost was a factor in holding the 2011
referenda at the same time as the presidential election.118 The problem with such linkage, however, is
that it can have serious disadvantages for the level of debate, as the 2011 experience shows.
APPOINTMENT OF REFERENDUM COMMISSION
The main response of the Government to McKenna (No. 2) and Hanafin was the statutory power
given in the Referendum Act 1998 to establish the Commission, whose main function is to provide
information to voters. Under s.2(1), in the case of a constitutional referendum, the Minister for the
Environment, Community and Local Government is empowered, but not obliged, to establish a
Commission if he or she considers it appropriate. Nor does it require that the Commission be
established for any specific length of time before polling day. Each Commission is appointed for a
particular referendum and terminates automatically a month after submitting its report to the Minister,
after the referendum is completed.119 Section 2(2)(a) prohibits the establishment of a Commission for
a constitutional referendum before “the date on which the Bill concerned is initiated in Dáil Éireann”.
Section 3(3) provides that if the Commission is established before the referendum Bill is passed, it
cannot publish a statement or incur expenditure before the Bill is passed, without the consent of the
Minister for Finance.
In 2011 the Minister appointed the Commission shortly before the two referendum Bills were debated
in the Oireachtas. The Order establishing the Commission for the referendum on judges' pay was
made on September 5, 2011.120 The equivalent order for the inquiries amendment was made on
September 13, 2011.121 The campaign period for the 2011 referenda was substantially less than those
for the 2008 and 2009 Lisbon referenda. Commissions have repeatedly, but unsuccessfully, urged
that the time provided to them to discharge their functions should be increased.122
*Irish Jurist 28 THE INFORMATION FUNCTIONS OF THE COMMISSION
Section 3(1)(a) of the Referendum Act 1998 required the Commission to prepare statements giving a
general explanation of the proposal and setting out arguments for and against the proposal and the
statements had to be “fair to all interests concerned”. The Commission was also required by s.3(1)(c)
to foster and promote debate in a fair manner. Section 5 enabled the Commission to obtain
broadcasting facilities on R.T.E. and independent television and radio stations.123 Section 6 enabled
persons to make a submission to the Commission on a proposal.
An important change occurred in 2001, when the Commission's function of setting out the arguments
for and against, along with its role of promoting debate, was removed. This was due to a perception
that setting out arguments artificially validated and gave equal weight to rationally unsustainable
arguments and without context.124 Section 1(a) of the Referendum Act 2001 required the Commission
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to provide a general explanation of the proposal and the text and any other information it considered
appropriate. It was also required “to promote public awareness of the referendum” and encourage
people to vote. The 2001 Report regarded the main role for articulating the arguments on each side
as being for the political parties and interest groups.125
A practical effect of having the Commission formulate either “for” or “against” arguments or even
general information is that it is potentially open to challenge during the campaign from parties
claiming that their arguments have been unfairly excluded or misrepresented. In McKenna (No. 1),
the plaintiff claimed that the Government's booklet giving information on the Maastricht Treaty was
inadequate and misleading. Costello J. declined to adjudicate on the issue126 but this was before the
Hanafin and Coughlan dicta, which referred to the constitutional right to information.127
*Irish Jurist 29 Section 12 of the Referendum Act 1998 (which amended s.43 of the Referendum Act
1994) provides that a provisional referendum certificate cannot be challenged on the grounds of
non-compliance by the Commission with its statutory obligations, or a mistake by the Commission, if
the High Court concludes that the Commission complied with the statutory principles and that the
non-compliance or mistake did not materially affect the outcome. This affords considerable protection
but only in respect of challenges after the poll, and the position in regard to pre-poll challenges is
somewhat less clear, as shown by the experience of the referendum on the Fiscal Stability Treaty,
described later below.
In 2011 the Commission launched a comprehensive media information campaign on October 11, 16
days before polling, together with the dispatch of a booklet of information to every home, which began
on October 10 and was expected to take one week to complete.128 Concerns were expressed
regarding the adequacy of the level of detail of the booklet and its arrival, in some instances, close to
polling day.129 The Report of the Commission for 2011 noted that the timescale given to it was
exceptionally short, with only five weeks to prepare its Guide and perform other tasks. It referred to
the uncertainty over the wording of the referenda until a late stage and the limited debate in the
Oireachtas which restricted the opportunity for the public to engage with the issues until close to
polling day. It also referred to the fact that the presidential election was held on the same day, as
presenting a further challenge to its performance of its tasks. It echoed the general criticisms of its
predecessors about having inadequate time, and expressed concern that voters' choices could have
been affected by insufficient time to understand the proposal. Research carried out for the
Commission after the poll indicated that voters were influenced in significant numbers to abstain or to
vote “No” because of a significant lack of understanding of the proposals. It said that the manner of
the conduct of referenda in Ireland contrasted with the Council of Europe's Code of Good Practice on
Referendums (March 2007).130
The overall arrangement now is that voters themselves must work out the arguments for and against
an amendment, which may be highly complex, from the general information received from the
Commission, and from public debate. However, these mechanisms for informing people can still leave
deficits, as the experience of 2011 shows.131 The contribution of politicians during the first *Irish
Jurist 30 Lisbon Treaty Referendum was also problematical.132 Deficits in information can
significantly affect the outcome of a referendum. Where voters have little information, it is more likely
that the proposal will be defeated on the “If in doubt, vote No” principle and there will also be a lower
turn out, when voters know less about the subject of the proposal.133
PUBLIC FUNDING CONSIDERED
The provision of funding to both sides of the referendum proposal was seriously considered as a
response to McKenna (No. 2), but no consensus has been achieved on the issue. In 1996 the
Constitution Review Group recommended that there should not be a constitutional barrier to providing
public funds, provided that the equitable allotment of funds was entrusted to an independent body and
it recommended an amendment of Art.47.4.134 In 1997 the All-Party Oireachtas Committee on the
Constitution in its First Progress Report (April, 1997) (the “1997 Report”) recommended that funding
for referendum campaigns should be regulated by an independent body.135 However, the Government
was unwilling to provide funding. It was concerned about possible constitutional challenges and the
political reaction. In 1998 the Minister for the Environment and Local Government, Noel Dempsey,
canvassed the political difficulties regarding allocating funding:
“Should it be pro rata to the size and representation of parties or groups or should 50 percent of the
funding be given to both sides? Either approach would be open to challenge on the grounds of
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unfairness. This would be particularly true in the case of the Treaty of Amsterdam given that 97 per
cent of the people's representatives are in favour of it. I am not satisfied that taxpayers would be in
favour of the Government issuing large sums of their money, together with the extra costs of
administering a scheme, to political parties and interested groups to persuade them to vote for or
against the referendum.”136
There was also concern about funding certain groups opposing an amendment to implement the
peace settlement in Northern Ireland.137
*Irish Jurist 31 The 2001 Report also advocated that funding arrangements should be put in place to
allow the Commission to “dispense funds to promote the referendum campaign by dividing the funds
equally among the pro and anti sides”.138 A majority of the All-Party Oireachtas Committee
recommended the adoption of an “equitable funding” mechanism, adapted from a Danish model,
whereby half the funding would be given to the parties in the Oireachtas, with the remainder divided
“equally between the pro and anti groups outside the Oireachtas …”.139 A minority argued that funds
should be divided equally between the two sides, in order to avoid a constitutional amendment. The
majority did not press for equitable funding to the point of recommending a constitutional amendment.
140
The Government, however, made no provision for funding in the Referendum Act 2001 because of
anticipated adverse political reaction to providing funding for viewpoints many voters would reject and
concerns over its constitutionality.141
Perhaps governments and politicians generally cannot be entirely dispassionate in deciding such
questions. However the issue of public funding is undoubtedly difficult, particularly because public
perceptions of its acceptability will vary depending on a variety of circumstances, including the level of
opposition to a referendum proposal and economic conditions.
TOO MANY ISSUES AND TOO LITTLE TIME
The 2011 referendum experience also raises questions about the number of issues that voters can
satisfactorily address at any one time, whether as referendum proposals and/or in combination with
an election. Combining a referendum with an election can mean that the election dictates the
referendum time frame, causing the referendum debates to be rushed. The only constitutional
restriction is that a Bill containing a proposal or proposals for amendment cannot contain any other
proposal.142 There are a number of variables in determining how many referendum issues the
electorate might reasonably be asked to decide, including the relative complexity of the proposals, the
length of the referendum campaign, whether they are to be combined with an election and, if so, what
kind of election. Bye-elections and European Parliament elections are less likely than a general or
presidential election to intrude significantly on a referendum campaign.
FISCAL STABILITY TREATY REFERENDUM 2012
A further referendum took place on May 31, 2012 concerning the Fiscal Stability Treaty and it was the
only issue put before the people. This proposal *Irish Jurist 32 was passed with a majority of 60.3
per cent in favour and 39.7 per cent against. The turnout for the referendum was 50.6 per cent.143 The
campaign period was, once again, close to the minimum level.144 The Commission was appointed on
March 30, 2012145 and its information campaign was launched on May 3. At that stage the
Commission had its explanatory booklet ready for publication, which was a week earlier in the
campaign period than occurred for the two previous referenda. The Commission had decided that the
following week was the most appropriate time to distribute it. At the launch, the Commission
Chairman acknowledged that the fact of having only one proposal and no election taking place at the
same time was helpful.146
From an information perspective, the most controversial issue was not the adequacy of the
information, but its accuracy. Unlike 2011, on this occasion the formal information distribution worked
more successfully.147 The explanatory booklet was distributed at an earlier stage and the Government
also sent a copy of the Treaty to each household. The quality of the debate also benefited from the
fact that this proposal had immediate serious financial repercussions and there was greater
participation by politicians generally. Unlike the mammoth Lisbon Treaty, the Fiscal Stability Treaty
was short. Nonetheless, opinion polls before the vote indicated that large numbers of voters did not
understand the Treaty.148
Before the campaign formally began, Sinn Féin, who opposed the amendment, challenged the
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Government over its ##2 million information campaign. They claimed that some of the content
favoured a “Yes” vote.149 There were objections to the content of items on the Government website
and content from a Government information website, referring to a speech by the Taoiseach, was
removed. A Government spokesman was quoted as saying that the McKenna (No. 2) judgment came
into operation when the Referendum Order was signed and the Government “made no apology for
advocating a position in advance of that”.150
*Irish Jurist 33 The second and major controversy relating to information arose from Commission
statements regarding the relationship between the Fiscal Stability Treaty and a related arrangement,
the European Stability Mechanism (“ESM”). The Commission Chairman made a statement at the
launch of the campaign on May 3, which opponents considered inaccurate. The Commission
chairman later denied that it was inaccurate.151 On May 18, a further reference to the issue was
posted on the Commission's website. The detail of the statements need not concern us here save to
say, briefly, that it related to whether the State could still veto the March 2011 European Council
decision to amend the Treaty on the Functioning of the European Union, to allow the ESM to be
established to provide emergency funds to EU States in serious economic difficulties.
Doherty challenge
The ESM/veto controversy eventually resulted in an application to the High Court on May 29 at
12.30pm by Pearce Doherty, a Sinn Féin TD.152 He sought leave to apply for judicial review arising
out of the Commission's statements regarding the veto and the ESM. He sought a declaration that the
Commission had breached its duty to give accurate and neutral information in regard to the
referendum. He claimed that the Commission was wrong in stating that the Government no longer
had a veto in relation to the ESM. He argued that the Commission's second statement had clarified
the issue but it had failed to publicise the correction. Notably, he did not seek to restrain or postpone
the holding of the referendum.
The application for leave was adjourned until that evening. The Attorney General was given courtesy
notice and was represented at the hearing when, by agreement, the application for leave was treated
as the full hearing of the action. In his lengthy oral judgment delivered the following morning, Hogan J.
refused the application and gave his detailed written judgment later on June 6, after the poll. His
judgment was the first consideration of the role of the Commission. Hogan J. drew attention to the
extraordinarily short notice that the Commission's and Attorney General's legal teams had to address
the matter and noted that delay in itself was a ground for refusing relief, and he cited Riordan v An
Taoiseach (No. 2). 153 He concluded, however, that the issues raised were so important that he should
try to deal with them and he did not dismiss the application on grounds of delay.
Briefly, he referred to the constitutional role of the courts in the referendum process and what he
characterised as the relevant “three core principles”, namely popular sovereignty, freedom of speech
and equality, identified in *Irish Jurist 34 McKenna (No. 2). He referred to the role of equality in
ensuring “that during the Referendum period, the arguments are fairly balanced so far as the public
institutions of the State are concerned”. He referred to McKenna (No. 2), Coughlan and Kelly v The
Minister for the Environment, 154 indicating that they,
“… all stress the principle of equality during the election and referendum process. Article 40.1 thus
reflects the deeply moral premise of strict equality of citizens. In the Referendum context, the value of
all votes and each vote and the opinion of all citizens from the most humble to the most exalted are
valued equally. It is in that context that, to aid political debate, the Commission was established by the
Referendum Act of 1998 (“the Act of 1998”)”.
He referred also to the Constitution as calling “especially at a time of referendum, for a robust political
debate from an informed public”, suggesting that Hogan J. likewise considers that there is a
constitutional entitlement to information. He then analysed the Commission's powers and concluded
that the Oireachtas envisaged that it would provide general information to the public, rather than an
in-depth analysis, akin to that of a legal text.
Hogan J. considered the important question of justiciability regarding the Commission's statements.
He distinguished the earlier judicial view on justiciability regarding assessment of information that had
been expressed in 1992 by Costello J. in McKenna (No. 1), on the basis of two intervening factors. He
concluded first that the approach of Costello J. was not appropriate to follow because, unlike the
position in 1992, there was a statutory requirement that the Commission's statement “be fair and
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non-partisan so that the Court would necessarily have a jurisdiction to review such statements on
vires grounds where this statutory requirement had been breached”. Secondly, Hogan J. referred to
the effect of McKenna (No. 2), which he said “decided three years later that equality in the entire
referendum process is a clear fundamental value so that a Court can interfere where that principle
has been violated”. Hogan J. adopted the test that the court could interfere only where the
Commission's statement was “plainly wrong” or “manifestly inaccurate or misleading” and likely
materially to affect the outcome. The requirement that the outcome be materially affected was applied
by analogy from s.43(3) of the Referendum Act 1994 (as amended), being part of the test for post-poll
challenges regarding the compliance of the Commission with its statutory functions. He said that the
courts must also take care to ensure that applications of this kind do not become “a surreptitious
vehicle whereby advisory opinions can effectively be obtained in respect of contentious issues in the
course of a referendum campaign”. Addressing the role of the courts, Hogan J. said that, subject to,
“the parameters of the quite exceptional jurisdiction which I have identified, the Courts must otherwise
refrain from any involvement in *Irish Jurist 35 the Referendum process other than ensuring and
preserving these core constitutional principles of popular sovereignty, freedom of speech and equality
in the entire referendum campaign, so far as it concerns the institutions of the State”.
He concluded that there was no real difference of substance between the Commission's two
statements and that the complaint about a lack of publicity for the second statement was ill-founded.
Finally, he addressed the important question of whether the Commission's statement was plainly
wrong. After a lengthy analysis of Art.29 of the Constitution and the various EU law provisions, the
detail of which need not concern us here, Hogan J. said he could not “say at all that the Commission
statement is plainly wrong or inaccurate, still less that it is likely to materially affect the result”.
He indicated that:
“the final resolution of these questions can only be determined by a reference by the Court of Justice
and perhaps, ultimately, by a form of dialogue between the Supreme Court and the Court of Justice in
relation to interaction of European law, international law and our own domestic constitutional law.”
He believed there was “unquestionably room for legitimate, legal and political debate on this issue”.
ENFORCING THE RIGHT TO INFORMATION
Overall, it is clear that the process of providing information during referenda is not operating as well
as it should, and it raises the question of what can be done to improve it. Some legislative changes
could be made to referendum procedures that would help indirectly, to ensure that information is
provided to voters. These include increasing the usual maximum and minimum campaign periods
(with an exception for cases of extreme urgency); prohibiting the holding of referenda at the same
time as presidential or general elections or at least requiring a much longer campaign period; putting
the Commission on a permanent footing or at least making its appointment mandatory and requiring
the appointment to be made much earlier. It has been suggested that the work of the Commission
could be better performed by a permanent Commission, such as a possible Electoral Commission,
that would deal with both electoral and referendum issues.155 The Government has included the
establishment of an Electoral Commission in its Programme for Government. However, some
variables cannot be controlled by legislation, such as the level of Parliamentary *Irish Jurist 36 and
public debate, the level of consensus and whether other events distract from the campaign.
Shortcomings in information raise the question of whether or how a constitutional right to information
could be enforced and how such issues could be addressed in the limited time frame of a referendum
campaign. The precise scope of any constitutional right to information is unclear. Such a right would
also seem to require that there should also be sufficient time available in which to exercise the right.
Important practical questions arise, such as who has the duty to inform and when information has to
be provided. Politicians, interest groups and experts cannot be compelled to inform the public. The
State, however, has a general duty to vindicate constitutional rights and it also administers the
referendum process, so it seems reasonable to assume that the State would bear some responsibility
at least for providing the voter with information. Denham J. in McKenna (No. 2) referred to the
Government's duty to inform voters.156 The Commission was established subsequently and now
performs a statutory function to provide information.
McKenna (No. 2) decided that the court can scrutinise whether the performance of constitutional and
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statutory obligations relating to referendum procedures has been in accordance with constitutional
principles.157 In the first instance, the court will regard it as a matter for the Oireachtas to legislate for
how the referendum procedures are to operate, but it can enforce constitutional rights, even if the
legislation is insufficient.158 Hogan J.'s reasoning in Doherty indicates that the court would act to
enforce the Commission's statutory obligations regarding information and the three constitutional
principles to which Hogan J. referred. Thus, even without the constitutional right to information having
been explicitly identified, it is clear that the Commission's statutory obligations will be enforced. It
seems likely that the high threshold for intervention established in Doherty would also attach to
determining inadequacy of information and its consequences.
While the courts are extremely unlikely to be disposed to grant relief restraining the referendum from
proceeding, equally declaratory relief might not be able to remedy a breach in time. Whether this
means that, albeit in rare and exceptional circumstances, a breach of the constitutional provisions
could conceivably give rise to injunctive relief is unclear. In McKenna (No. 2), a declaration of
unconstitutionality was sufficient to halt the funding and enforce the right identified. The absence of
adequate information could pose more awkward issues for enforcement. Mandatory injunctions
against the executive will rarely, if ever, be given.159 Mandatory relief against the Commission would
be feasible but, depending on the timescale, it may not prove effective. *Irish Jurist 37 In Slattery an
order to restrain the referendum was refused on the grounds that it would be a breach of the
separation of powers to interfere in the legislative process. However, this was before the decision in
McKenna (No. 2), that the courts could intervene in the process regarding a procedural issue.
In 2001, in an ex tempore judgment in FitzGibbon v Ireland, 160 Keane C.J. (with whom Denham J.
agreed) refused an application by a lay litigant to restrain the holding of three referenda or
alternatively the count of votes, on grounds, inter alia, of insufficient information and inadequate time.
The appellant did not complain about the information provided by the Commission, but rather about
the general procedures and structures for ensuring a balanced debate. The judgment was given the
day after the poll, when the count was in progress. Keane C.J. followed the principle set out in Finn v
Attorney General, 161 where the Supreme Court held that the courts could not intervene in the
legislative process. That principle had also been applied in Slattery. Keane C.J. regarded it as
unnecessary to consider whether there might ever be “exceptional circumstances in which the court
might be satisfied that the provisions of the Constitution itself were not being complied with …”. He
thought, however, that such circumstances would be “so rare and so exceptional that it is difficult to
conceive of them in practice”. He said that no ground had been put forward that went beyond the
basis that had been rejected in Slattery. He added that the procedure cannot be unconstitutional if it
complies with the Constitution and no failure to comply with the requirements of the Constitution had
been shown.
Related to the issue of a remedy are the questions of what a right to information would consist of and
whether a voter has been given adequate information. For example, what criteria for assessment are
to be adopted? Would adequacy be judged qualitatively and/or quantitatively? Would the adequacy of
the information given by the Commission be assessed in the wider context of the existing
contributions of politicians, interest groups and experts? At what stage can the adequacy of the
information be assessed? Assessment could prove difficult during an evolving campaign, where for
example ongoing developments taking place at an EU level may affect the substance of a referendum
proposal and the information already provided. Would there be a trial during the campaign to assess
it? A proper assessment might only be feasible towards the end of the referendum campaign, when
the totality of information available could be considered, by which time, in practical terms it might be
too late to intervene. Relief after the referendum would be by way of referendum petition and, as
already seen, it would be extremely difficult to succeed in such an application.
Before the poll, even adjudicating on an interlocutory application during the limited time frame could
be very difficult, as McKenna (No. 2) illustrates. In McKenna (No. 2) the appeal was heard on
November 8 and 9 and the judgment was delivered on November 17, 1995, just a week before polling
day. The *Irish Jurist 38 complex issues arising were determined at speed on foot of affidavit
evidence only. The parties had consented to the interlocutory motion being treated as the hearing of
the action. Such consent might not be forthcoming in another case and, even if it were, it would still
prove difficult to have the matter determined even by the High Court, let alone the Supreme Court,
before polling day. Retired Chief Justice O'Higgins expressed concern about the speed of the appeal
in McKenna (No. 2). 162 The rushed nature of Doherty further demonstrates the difficulties. While the
parties were fortunate in Doherty that, as it happened, Hogan J. already had enormous experience of
the relevant areas of law, this happenstance may not recur.
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Doherty illustrates the logistical difficulties facing a court in trying to determine the accuracy of
information. Although the court was able to say that the information was not clearly inaccurate or
likely to materially affect the outcome of the referendum, it was unable within the time frame available
to address the core issue of whether the information was accurate or not. Even if the application in
Doherty had been brought sooner, it would still have been impossible to have decided the issues
raised there within the referendum campaign time frame. If a court is unable to say that the
information being given by the Commission is not clearly inaccurate, should the court restrain the
holding of the referendum and, if so, for how long? There is no statutory provision allowing the
postponement of a referendum after an order fixing a polling date is made, other than if a general
election is called.163
This kind of problem could well recur in view of the complex questions that frequently arise,
particularly in regard to EU issues, where time constraints can be significant and where final
determination of a legal issue may not depend solely on the Irish courts. Furthermore, by the time the
issue of accuracy is fully determined, the referendum may be long over and the statutory period for
bringing a referendum petition may have expired. Thus there is a risk that votes will be cast on foot of
information that may prove to be inaccurate or incomplete and which may have played a material part
in the outcome of the vote. Absent a successful challenge to the current statutory time-limits on the
grounds that they are too restrictive for instituting proceedings, this could mean that constitutional
rights of voters are infringed, but voters could be left without a meaningful remedy under the current
statutory framework. A challenge to the validity of the time limits would however be extremely difficult
and would have to overcome the important countervailing need to create certainty as to the outcome
of a referendum within a reasonably short period. Resolution of the issues raised in a case such as
Doherty by the European Court of Justice and the Supreme Court may not be feasible during such a
period.
The courts have power to intervene to restrain apprehended infringements of constitutional rights.164
Presumably, however, it would require extreme *Irish Jurist 39 circumstances before a court would
conclude that it was necessary to restrain the holding of a referendum. While it is undoubtedly very
important for the integrity of the referendum process that voters be informed correctly and adequately,
the issues of practicality and proportionality would clearly be highly relevant in scrutinising the
significance of the incompleteness or inaccuracy of information and determining the provision of relief.
Elements of proportionality and practicality are implicit in Hogan J.'s test in Doherty. If referenda were
to be restrained with any frequency, the overall referendum process could become seriously
undermined by uncertainty, with the risk of significantly increasing voter apathy. Threatening litigation
to restrain the process could be used as a political tool by opponents of proposals, also creating
uncertainty. The overall damage to the hugely valuable facility of holding referenda would have to be
factored into deciding where the balance of the public interest lies and what relief should be given.
The overall requirements of the common good might require that a remedy should not be provided165
where it undermines the effective operation of the referendum process.
LEGACY OF MCKENNA (No. 2), HANAFIN AND COUGHLAN
Despite the careful consideration given by the Oireachtas to the implications of the judgment of
McKenna (No. 2), the legacy of McKenna (No. 2), Hanafin and Coughlan has left serious unresolved
problems for governments about how to provide a practical process that is democratic in the widest
sense. While the Oireachtas legislated in the light of McKenna (No. 2), recent experience shows that
this has not satisfactorily resolved the problems of providing information to the public. Governments
can do more to ensure that sufficient time is available for voters to consider referendum information
and to facilitate the work of the Commission, and politicians can do more to ensure public debate.
However, there are limits to what governments and politicians can achieve in this area to ensure
balanced debate because wider factors also intervene.
Governments must also address issues relating to the democratic conduct of referenda in a much
wider context, beyond the particular procedural issues addressed in McKenna (No. 2). 166 As Hogan J.
has pointed out, McKenna (No. 2) was concerned with the application of what he characterised as
three core principles to the actions of the institutions of government. The difficulty, however, is that
the institutions of government are only some of the participants in a referendum context and it is the
system as a whole, *Irish Jurist 40 involving the various actions of all the participants and outside
factors, that determines the overall democratic quality of the referendum.167 The rather
one-dimensional perspective of the majority judgments in McKenna (No. 2) of the requirements of
Arts 46 and 47 does not reflect the real role of the Government or the complexity of the referendum
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processes in which the institutions of government must operate in the current constitutional
framework. The result has been that other democratic deficits have ensued. This may be related to
the fact that McKenna (No. 2) was decided under severe time constraints, and the evidence available
to the court on the broader issues affecting the operation of referenda was inevitably limited.
The range of multi-dimensional problems that have followed McKenna (No. 2) shows the complexity
of ensuring overall democratic control of the referendum process in the current constitutional
framework. The far-reaching effect of the decision and the degree to which equality is the
predominant value, even at the expense of democratic elements, are demonstrated by the fact that
governments cannot use public funds, whether capped or not, to support a “Yes” campaign, unless
they provide equal funding to the “No” campaign. This applies even where the Government has a
specific mandate from the people to bring forward a referendum proposal, or where only a small
minority may be opposed to it, and who may have substantial funding to resist it. Even if only one
person opposes the referendum, that person must get equal funding and equal broadcasting time.
Governments are effectively powerless to counteract media campaigns from powerful foreign groups,
whether political, corporate or fundamentalist. Such groups can distort Irish referenda by funding
opposition to a proposal, to establish a principle for their own purposes which can be extraneous to
the interests of Irish people.168 This is particularly so in the context of referenda on EU issues, where
the outcome of a referendum in Ireland can have significant effects elsewhere in the EU. *Irish Jurist
41 Some British-owned newspapers circulating in Ireland, which were opposed to the Lisbon
Agreement in a British context, took a strong anti-Lisbon approach during the first Lisbon Treaty
referendum.169
Political parties may not succeed in filling the gap created by the Government's inability to fund.
Whether in government or opposition, they may not have available, or be willing to expend, sufficient
resources to fund a referendum campaign, particularly if a general election is due. Support given by
the European Commission for referendum proposals (which might involve expenditure from EU funds,
rather than Irish public funds) has also proved controversial.170 The majority judgments of McKenna
(No. 2), however, do not apply to such funding. The application of the equality principle in the
broadcast sphere has proved difficult and has given rise to significant problems in achieving balanced
and lively debate.171 The requirement of equal broadcast time leaves the referendum debate at risk of
being artificially distorted by making opposition to a proposal more attractive for reasons unrelated to
the merits of the proposal itself.
Obtaining political consensus for funding has proved elusive. The All-Party Oireachtas Committee
itself has been divided over how to provide such funding. There are also issues about its
constitutionality if the equitable method is adopted. In any event, some of the practical problems
referred to above are not readily solvable by funding. Funding both sides equally or equitably would
not result in both sides having similar resources, since groups representing a small minority could still
have far greater funds than their opponents. Banning all domestic funding for both sides would have a
detrimental impact on public debate and increase voter apathy. It would also be difficult to enforce,
and it risks constitutional challenge to the process, based on freedom of expression172 and
association. Some of these problems could also arise with capping funding generally or with banning
foreign funding. Fragmentation of groups and individuals, among both proponents and opponents,
would make it difficult to devise an effective and constitutionally valid cap.
Constitutional amendment could help to address some of these issues, and to provide a more
democratic quality to the referendum process. At present, however, there is little indication of a
general consensus developing over the desirability of a referendum on this issue. Spending limits for
referenda are part of the current Programme for Government, but overall reform of the referendum
funding procedure is not. Even if there were a constitutional amendment to provide limited funding to
both sides, as well as banning foreign funding, this would not solve all the problems. A ban on foreign
funding would do nothing to prevent a campaign of opposition by British-owned press in Ireland. A
constitutional amendment would not prevent political groups from opposing proposals solely to avail
of funding or broadcasting exposure. *Irish Jurist 42 Implementation of funding provision could also
prove difficult in the tight time frame of a referendum, since different interest groups would emerge for
each separate referendum, reflecting the differing subject matter. There could well be disputes over
entitlement to funding, with possible challenges during the limited time frame of a referendum
campaign, from disparate interest groups regarding the allocation of funds among competing groups.
CONCLUSION
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As far as the Government and Oireachtas are concerned, a constitutional amendment could help to
address some of the difficulties arising out of McKenna (No. 2) but there is no consensus on the
overall approach to the issues involved. Despite the current absence of consensus on the broad
question of funding, there is nonetheless much that they could do to ensure that better information is
available to voters, even within the existing constitutional framework.
Regarding the courts, McKenna (No. 2), Hanafin and Coughlan have significantly altered their role in
the conduct of referenda. The practical problems that have ensued have been immense and have
contributed to other democratic deficits. These problems, resulting from a major shift in judicial
approach, which has been controversial because of its legal reasoning and very interventionist
approach, prompt the question whether a more cautious judicial response to dealing with the
multi-dimensional issues of operating this political process, would have been preferable. It illustrates
also the wisdom of the dicta of the American Supreme Court in adopting a conservative approach to
intervention on political questions and in recognising new constitutional rights. Restraint has been
more apparent in some other Irish decisions involving expenditure questions and separation of
powers issues, unrelated to referenda. Hogan J.'s recent judgment in Doherty suggests a more
restrictive approach in the exercise of judicial power in this area, by the adoption of a high threshold
before the court would grant relief.
While the position since McKenna (No. 2) is that the courts now regard procedural issues in referenda
as justiciable, the courts will have to determine when or how much further they are prepared to
intervene on referendum issues. It remains to be seen whether they will recognise a constitutional
right to information and, if so, of what scope. The logistical problems limit what is feasible regarding
the enforcement of information rights, unless the courts decide that they will restrain the holding of
referenda, something which to date they have refused to do. To do that would represent a further
major change in their approach to the separation of powers in this area. In deciding such issues the
courts will have to work out where in their view the public interest lies, as between the effective
enforcement of rights to information and the effective operation of the referendum process.
Bláthna Ruane LLM (Cantab.) PhD (Cantab.) is a Senior Counsel, Bar of Ireland.
Irish Jurist 2012, 48, 1-42
1.
See Maria Scott, “The House that the Supreme Court Built: The Rulings in Coughlan and McKenna, the Lisbon Treaty
and the Constitutional Referendum in Ireland” (2010) 9 Hibernia Law Review 219; Bairbre O'Neill, “The Referendum
Process in Ireland” (2000) 35 Ir. Jur. (NS) 305; Paul Anthony McDermott, “The Separation of Powers and the Doctrine
of Non-Justiciability” (2000) 35 Ir. Jur. (NS) 280; James Casey, Constitutional Law in Ireland, 3rd edn (Dublin: Round
Hall, 2000), pp.712-718; Gavin Barrett, “A Road Less Travelled: Reflections on the Supreme Court Rulings in Crotty,
Coughlan and McKenna (No. 2) ” (2011) Institute of International and European Affairs, Dublin, available at:
www.iiea.com [Last accessed, August 15, 2012].
2.
[1995] 2 I.R. 10.
3.
[1996] 2 I.R. 321.
4.
[2000] 3 I.R. 1.
5.
This was enacted as the Twenty-Ninth Amendment of the Constitution (Judges' Remuneration) Act 2011.
6.
See the Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011.
7.
For example, on the judges' pay referendum, see Ronan Keane, “Judicial Independence--The Best We Can Do?”
(2011) 29 I.L.T. 191; and Fiona De Londras, “The Judicial Pay Referendum in its Broader Context of Dáil
Empowerment: Unbalancing Powers?” (2011) 29 I.L.T. 202. On the inquiries referendum, see Irish Times, October 17,
2011: P.J. O'Meara and Mark Kennedy, “The State versus the individual: The Case For”, and Rónán Mullen and
Patricia McKenna, “The Case Against: Amendment may tip the balance against fairness”.
8.
See Irish Times, October 12, 2011: “Rushed referendums”, and October 21, 2011: “A too silent referendum”. Similarly,
Conor O'Mahony: “Devil is in the Detail”, Irish Examiner, October 25, 2011.
9.
Deaglán de Bréadún, “Judicial pay issue drew 79% support”, Irish Times, October 29, 2011.
10.
Stephen Collins, “Opposition to Oireachtas amendment grows, polls find”, Irish Times, October 25, 2011.
11.
This was enacted as the Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in
the Economic and Monetary Union) Act 2012.
Page24
12.
Unreported, High Court, Hogan J., June 6, 2012; [2012] IEHC 211.
13.
See for example Finn v Attorney General [1983] I.R. 154; Roche v Ireland, unreported, High Court, Carroll J., June 17,
1983; MhicMhathúna v Attorney General, Irish Times, June 10, 1986, Hamilton P.; Murphy v Minister for the
Environment, Irish Times, June 10, 1992, Carney J.; McCann v An Taoiseach [1994] 2 I.R. 1.
14.
[1995] 2 I.R. 1.
15.
Fn.14 at 5.
16.
Fn.14 at 6.
17.
Fn.14 at 8.
18.
Fn.14 at 8.
19.
Fn.14 at 6-7.
20.
[1993] 1 I.R. 286.
21.
[1987] I.R. 713.
22.
[1993] I.R. 286 at 299.
23.
Fn.22 at 303-304.
24.
[1995] 2 I.R. 10 at 18.
25.
Fn.24 at 18.
26.
369 U.S. 186 at 217 (1962).
27.
[1995] 2 I.R. 10 at 19.
28.
Fn.27.
29.
[1995] 2 I.R. 10 at 46.
30.
Fn.29 at 47.
31.
[1974] I.R. 338.
32.
[1995] 2 I.R. 10 at 32.
33.
[1987] I.R. 713.
34.
[1995] 2 I.R. 10 at 32.
35.
Fn.34 at 39.
36.
Fn.34 at 40-41.
37.
Fn.34 at 42.
38.
Fn.34 at 42.
39.
Fn.34 at 42.
40.
Fn.34 at 38. See also 37.
41.
Fn.34 at 41.
42.
Fn.34 at 43.
43.
[2000] 3 I.R. 1 at 57.
44.
Fn.43 at 54. A similar realism towards the relationship of the Dáil and the Government is evident in Dudley v An
Taoiseach [1994] 2 I.L.R.M. 321 at 324.
45.
[1996] 2 I.R. 321 at 455.
46.
Thomas O'Higgins, “McKenna Judgment was Mistaken and was also central to Nice Rejection”, Irish Times, November
19, 2001.
Page25
47.
[1995] 2 I.R. 10 at 35, 36.
48.
Fn.47 at 36.
49.
Fn.47 at 48.
50.
Fn.47 at 40.
51.
Fn.47 at 42.
52.
O'Higgins, fn.46.
53.
[1993] 3 I.R. 227 at 250-251.
54.
[1995] 1 I.R. 484.
55.
Fn.54 at 499.
56.
[2001] 4 I.R. 259.
57.
Fn.56 at 361-362.
58.
He referred also to dicta of Costello J. in O'Reilly v Limerick Corporation [1989] I.L.R.M. 181 at 194.
59.
[2001] 4 I.R. 259 at 360-361. See also Sinnott v Minister for Education [2001] 2 I.R. 545.
60.
Fn.59 at 306.
61.
Fn.59 at 307.
62.
Fn.59 at 367.
63.
Fn.59 at 367.
64.
Fn.59 at 367.
65.
478 U.S. 186 at 194 (1986).
66.
[2001] 4 I.R. 259 at 362.
67.
Fn.66.
68.
[1995] 2 I.R. 10 at 50.
69.
[1971] I.R. 217.
70.
[1973] I.R. 388.
71.
G. Hogan and G. Whyte, JM Kelly: The Irish Constitution, 4th edn (Dublin: Lexis Nexis, 2003) (“Kelly”), p.2105.
72.
[1998] 2 I.R. 321 at 370.
73.
Fn.72 at 345.
74.
[1995] 2 I.R. 10 at 53.
75.
Fn.74 at 53-54.
76.
Fn.74 at 52.
77.
Fn.74 at 52.
78.
[1961] I.R. 114.
79.
[1995] 2 I.R. 10 at 53.
80.
[1995] 2 I.R. 10 at 42.
81.
Fn.80 at 43.
82.
Fn.80 at 43.
Page26
83.
Kelly, fn.71, p.1333.
84.
[2000] 3 I.R. 1 at 46.
85.
Kelly, fn.71, p.1374.
86.
Kelly, fn.71, p.1377.
87.
[1987] I.R. 23.
88.
Fn.87 at 43. The European Court of Human Rights later awarded damages for discriminatory treatment on the grounds
of breach of art.14 of the European Convention on Human Rights and art.1 of the First Protocol. However, the
Government argued the case before it on different grounds and changed its characterisation of the legislation and the
exception. The European Court of Human Rights expressed no view on the Supreme Court's reasoning on the
interference with the judicial domain: (1992) 14 E.H.R.R. 319.
89.
[1961] I.R. 114 at 137-138. It may be noted that in an electoral context, in Kelly v Minister for the Environment [2002] 4
I.R. 191, McKechnie J. followed McKenna (No. 2) in applying the principle of equality in the pre-vote stage prior to an
election. Thus, a statutory provision that gave better entitlement to existing deputies, as against non-deputies, in
respect of claiming candidates' electoral expenses was held to be unconstitutional. Again there was a much stronger
textual basis for its application in that case. Article 16.1.1° provides that “Every citizen without distinction of sex who has
reached the age of 21 years, and who is not placed under disability or incapacity by this Constitution or by law, shall be
eligible for membership of Dáil Éireann” (emphasis added).
90.
[1995] 2 I.R. 10 at 55.
91.
Fn.90 at 43.
92.
[1996] 2 I.R. 321 at 433.
93.
[1996] 2 I.R. 321 at 455-456.
94.
[2000] 3 I.R. 1 at 57.
95.
Fn.94 at 46.
96.
Fn.94 at 43.
97.
See also Kelly v Minister for Environment [2002] 4 I.R. 191.
98.
Briefly, s.43 provides that a referendum petition may question a provisional referendum certificate on the grounds that
the result of the referendum as a whole was materially affected by:(a) the commission of an offence … [as specified]
…;(b) obstruction of or interference with or other hindrance to the conduct of the referendum;(c) failure to complete or
otherwise conduct the referendum in accordance with this Act; or(d) mistake or other irregularity in the conduct of the
referendum or in the particulars stated in the provisional referendum certificate.
99.
(1939) 285 N.W. 59.
100.
[1996] 2 I.R. 321 at 430.
101.
Fn.100 at 455.
102.
Fn.100 at 422.
103.
In November 1998 in Riordan v An Taoiseach (No. 2) [1999] 4 I.R. 343 (at 358, 359), the Supreme Court (per
Barrington J.) confirmed that if appropriate procedures were followed, the court could not scrutinise “an authentic
expression of the People's will or an amendment made in accordance with Article 46”.
104.
[2000] 3 I.R. 1 at 31.
105.
Fn.104 at 31.
106.
Fn.104 at 31.
107.
Fn.104 at 43, 44.
108.
Fn.104 at 44.
109.
Fn.104 at 44.
110.
Mary Carolan, “Court rejects attempt to halt referendums”, Irish Times, October 27, 2011.
111.
Fn.110.
Page27
112.
The All-Party Oireachtas Committee on the Constitution, Sixth Progress Report: The Referendum (Dublin, November,
2001), p.20.
113.
480 Dáil Debates Cols 588, 639.
114.
Now Minister for the Environment, Community and Local Government.
115.
Fn.112, p.34.
116.
Fn.112, p.34.
117.
Press Release, Department of the Environment, Community and Local Government, September 26, 2011, available at:
www.environie/en/LocalGovernment/Voting/Referenda/News/MainBody, 2793. [Last accessed August 16, 2012].
118.
210 No.4 Seanad Debates, unrevised, September 21, 2011, Col. 235. The Minister for Justice, Alan Shatter.
119.
Section 14.
120.
S.I. No. 465 of 2011.
121.
S.I. No. 466 of 2011.
122.
In 2008, the Commission was established on March 6, with polling day on June 12. In 2009, the Commission was
established on July 7, with polling day on October 2, 2009. See Report of the Referendum Commission on the
Referendum on the Twenty-Eighth Amendment of the Constitution Bill 2008 (Lisbon Treaty), available at:
www.refcom.ie/en/Past-referendums/Lisbon-Treaty-2008/Report-on-the-referendum-on-the-Lisbon-Treaty-2008, pp.4,
22, 23, 32, 34-39 [Last accessed August 29, 2012]; and Report of the Referendum Commission on the Lisbon Treaty
2009, available at: www.lisbontreaty2009.ie, pp.3, 15, 19 [Last accessed August 16, 2012.]
123.
There is no equivalent provision regarding the print media. The two areas of the media have traditionally been treated
differently, with the broadcast media being subjected to obligations under the broadcasting legislation, not imposed on
the print media.
124.
168 Seanad Debates Col.1758, Deputy Robert Molloy, Minister of State; see also, the 2001 Report, fn.112, p.25.
125.
See the 2001 Report, fn.112 above, pp.23 and 25.
126.
In the High Court in Slattery (at 291), Costello J., in an ex tempore judgment on an ex parte application and without any
lengthy analysis, held, on the basis of his own knowledge as a citizen and from McKenna (No. 1) which he had just
been trying, that information had been made available and that reasonable efforts had been made to disseminate
information.
127.
See also the comments of Anthony Coughlan on the information made available by the Commission in regard to the
first Lisbon Treaty in Joint Committee on the Constitution, Second Report Articles 46 and 47 Amendment of the
Constitution and Referendum First Interim Report (Dublin, April 2009) (the “2009 Report”), p.67, and also comments of
Deputy
Michael
Kennedy,
in
the
2009
Report
p.60,
available
at:
www.oireachtas.ie/documents/committees30thdail/j-constitution/report_2008/Report20090402.pdf
[Last
accessed
February 8, 2012].
128.
Press
Release,
Referendum
Commission,
October
11,
2011,
available
at:
www.ncbi.ie/news/press-releases/2011-10-11_referendum-information-available-in-alternative-formats [Last accessed
August 16, 2012].
129.
Elaine Edwards, “Referendum information inadequate--ICCL”, Irish Times, October 27, 2011, available at:
www.irishtimes.com/newspaper/breaking/2011/1027/breaking55.html [Last accessed August 16, 2012]; Deaglán de
Bréadún, “Commission says time given to referendums ‘inadequate”’, Irish Times, April 16, 2012.
130.
http://www.refcom.ie/en/Past-Referendums/Judges'-Remuneration-and-Houses-of-theOireachtas-Inquiries-2011/Report/Report-on-the-refere
pp.13, 17-19 [Last accessed August 16, 2012].
131.
Michael Marsh, Jane Suiter and Theresa Reidy, “Report on Reasons Behind Voter Behaviour in the Oireachtas Inquiry
Referendum 2011” (January, 2012), prepared for the Department of Public Expenditure and Reform, pp.3, 37.
132.
See, for example, in the 2009 Report, referred to at fn.127 above, comments made by Professor Nicholas Rees, p.49,
Senator Dan Boyle, p.50, Professors Michael Marsh and Michael Gallagher, p.52, and Deputy Denis Naughton, p.63,
regarding the role of politicians in the first Lisbon Treaty Referendum.
133.
See the 2009 Report referred to at fn.127 above, submission of Professors Michael Marsh and Michael Gallagher, p.53.
134.
See Report of the Constitution Review Group (Dublin, May 1996), pp.404, 405.
135.
(Dublin, 1997) at pp.21, 22.
136.
154 Seanad Debates Col.565. See also comments of Deputy Dan Wallace, Minister of State, 486 Dáil Debates
Page28
Col.1087.
137.
486 Dáil Debates Col.1072, Deputy Brian Lenihan.
138.
See the 2001 Report, fn.112 above, p.38.
139.
See the 2001 Report, fn.112 above, p.30.
140.
2001 Report, fn.112 above, p.31.
141.
546 Dáil Debates Col.1440, Deputy Brian Lenihan; 168 Seanad Debates Col.1759, Deputy Robert Molloy, Minister of
State.
142.
Article 46.3.
143.
“How the Nation Voted”, Irish Independent, June 2, 2012.
144.
The
order
determining
polling
day
was
made
on
April
30,
2012,
available
at:
www.environ.ie/en/LocalGovernment/Voting/Referenda/News/MainBody,30012,en.htm [Last accessed August 17,
2012].
145.
Referendum Commission (Establishment) Order 2012 (S.I. No. 100 of 2012).
146.
Harry McGee, “Bailout veto opportunity now gone, says judge”, Irish Times, May 4, 2012.
147.
Stephen Collins, “Hard-fought campaigns well matched in intensity”, Irish Times, May 30, 2012.
148.
Michael Marsh, “Referendum was emotional but informed”, Sunday Business Post, June 10, 2012; Theresa Reidy, “All
sides fail to get messages across”, Irish Independent, May 17, 2012. See, for example, Millward Brown Lansdowne
National Opinion Poll--Attitude Towards the Fiscal Compact Treaty Referendum, Sunday Independent, May 27, 2012,
p.10, available at: www.imsl.ie/downloads/SundayÏndependent¨May¨2012.pdf [Last accessed August 17, 2012]; “Poll
indicates 55% of voters do not understand EU Fiscal Treaty”, RTE News, May 18, 2012, referring to Sunday Times
Behaviour
and
Attitudes
Survey,
available
at:
www.rte.ie/news/2012/0421/poll-shows-voters-do-not-understand-fiscal-treaty.html [Last accessed August 17, 2012].
149.
Deaglán de Bréadún, “State denies ##2m campaign contrary to McKenna ruling”, Irish Times, April 25, 2012; and
Deaglán de Bréadún, “Sinn Féin still to decide on injunction”, Irish Times, May 4, 2012.
150.
RTE News, April 26, 2012: www.rte.ie/news/2012/0426/no-irish-recovery-without-european- upturn-kenny.html [Last
accessed April 26, 2012].
151.
Harry McGee, “Bailout veto opportunity now gone, says judge”, Irish Times, May 4, 2012; Deaglán de Bréadún,
“Commission denies getting its facts wrong”, Irish Times, May 5, 2012.
152.
During the campaign a separate challenge regarding the relationship between the Fiscal Stability Treaty and the ESM
Treaty was brought by Independent TD Thomas Pringle: “Independent TD takes legal action over EU Treaties”, Irish
Times, May 17, 2012. This, however, did not challenge the referendum on the Fiscal Stability Treaty.
153.
[1992] 4 I.R. 343, 349, per Kelly J.
154.
[2002] 4 I.R. 191.
155.
1997 Report, fn.135 above, pp.21, 22 and 97, and Referendum Commission Report 2009, fn.122 above, p.19.
156.
[1995] 2 I.R. 10 at 55.
157.
McKenna (No. 2) and Riordan v An Taoiseach (No. 1) [1999] 4 I.R. 321; Riordan v An Taoiseach (No. 2) [1999] 4 I.R.
343; Doherty and Morris v Minister for Environment [2002] 1 I.R. 326.
158.
See dicta of Denham J. in Hanafin at 449. See also Doherty v Government of Ireland [2010] IEHC 369.
159.
TD v Minister for Education [2001] 4 I.R. 259.
160.
Supreme Court ex tempore judgments of Keane C.J. and Denham J., unreported, June 8, 2001.
161.
[1983] I.R. 154.
162.
O'Higgins, fn.46 above.
163.
See s.11 of the Referendum Act 1994. See also comments of the Commission in Stephen Collins, “Postponing May
31st referendum not legally possible”, Irish Times, May 16, 2012.
164.
East Donegal Co-Operative Livestock Mart Limited v Attorney General [1970] I.R. 317 at 338. Quoted by Denham J. in
T.D. at 301.
Page29
165.
In a different context see W v Ireland (No. 2) [1997] 2 I.R. 141, where a remedy of damages against the Attorney
General was denied to a plaintiff who claimed the Attorney General owed a duty of care to a victim of crime in respect
of the process of extradition requests. The refusal was on the grounds of public policy arising from the functions which
the Attorney General was obliged to perform in the public interest and the consequences for his ability to perform them,
if the duty alleged existed.
166.
See the criticism of the majority decision, 486 Dáil Debates Cols 888, 891, Deputy Alan Dukes, and 546 Dáil Debates
Cols 1428-1430, Deputy Alan Shatter.
167.
Views as to the appropriate role of administrative institutions in a referendum process can vary, as can be seen from
the Council of Europe's European Commission For Democracy Through Law, the Venice Commission's Code of Good
Practice
on
Referendums
(Strasbourg,
March
19,
2007),
available
at:
www.venice.coe.int/docs/2007/CDL-AD(2007)008-e.asp [Last accessed August 17, 2012]. Ireland is a member of the
Council of Europe. Its recommendations are not binding. Under the Code the principle of equality is emphasised. It
recommends that administrative institutions should not be entitled to fund a referendum campaign. However, it goes
even further than the Supreme Court in McKenna (No. 2) : it recommends that State authorities be required to be
neutral, (paras 2.2(a) and 3.1(a)) although this principle appears later to be qualified by providing that while complete
intervention is not prohibited, public authorities must not influence the outcome by “excessive, one-sided campaigning”
(para.3.1(b)). It envisages that receipt of public funds could depend upon whether opponents or proponents “account
for a minimum percentage of the population”. How compliance with that requirement is to be measured in the case of
interest groups that spring up in response to a particular referendum issue is unclear. The code is less stringent on the
observance of equality in regard to broadcasting than is the current position in Ireland, in that it provides that “it is
advisable” that there be equality.
168.
Concerns were expressed about money being raised in the United States to fight a referendum to alter Arts 2 and 3 or
by fundamentalist religious groups on other issues: 486 Dáil Debates Cols 1081, 1082, Deputy Eamon Gilmore.
169.
See the 2009 Report, fn.127 above, p.63.
170.
See comments of Anthony Coughlan in 2009 Report, fn.127 above, p.67.
171.
See the 2009 Report, fn.127 above, pp.38-45.
172.
See 486 Dáil Debates Cols 1091-1092, Deputy Dan Wallace, Minister of State for the Environment.
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