Supreme Court dismisses appeal regarding referendum validity after Minister corrected publication breach.

THE SUPREME COURT

[Appeal No. 432/13]

Denham CJ

Hardiman J

O’Donnell J

Clarke J

MacMenamin J

Laffoy J

Dunne J

In the Matter of the Referendum on the Proposal for the Amendment of the Constitution contained in the Thirty-First

Amendment of the Constitution (Children) Bill held on the 10th November 2012

Between/

Joanna Jordan

Petitioner/Appellant

and

The Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General

Notice Parties /Respondents

and

[Appeal No. 342/2014]

Between/

Joanna Jordan

Plaintiff/Appellant

and

The Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General

Defendants /Respondents

Judgment delivered on the 24th April, 2015 by Denham C.J.

1. Joanna Jordan, the appellant, and referred to as “the appellant”, brought two appeals to this Court, one from a judgment of the

High Court delivered on the 18th October, 2013, [2013] IEHC 458, and another from a judgment of the High Court delivered on the

20th June, 2014, [2014] IEHC 327, in proceedings brought in relation to a provisional referendum certificate and a plenary summons,

respectively. The respondents, the Minister for Children and Youth Affairs, Government of Ireland, Ireland and the Attorney General,

are referred to collectively as “the Minister”.

2. In these appeals a constitutional balance is required in circumstances where it has been held that there has been a breach of the

McKenna principles laid down by this Court by the Minister, see McCrystal v. The Minister for Children and Youth Affairs & Ors [2012]

2 I.R. 726, and there has been an exercise in popular sovereignty in a referendum by the People. A harmonious balance is sought

between the competing constitutional principles and rights.

Background facts

3. On the 8th November, 2012, in McCrystal v. The Minister for Children and Youth Affairs & Ors [2012] 2 I.R. 726, the Court held

that the Minister had acted in breach of the McKenna principles in publishing the material in issue, prior to the Referendum on the

Thirty First Amendment of the Constitution (Children) Bill, 2012.

Publication of the material ceased at that time.

4. On the 10th November, 2012, a referendum was held on whether Article 42.5 of the Constitution of Ireland should be deleted and

replaced with the insertion of a new Article 42A as contained in the Thirty First Amendment of the Constitution (Children) Bill, 2012.

5. In the referendum 33.49% of the eligible electorate voted. 58% of those who voted, voted in favour of the proposed amendment.

42% of those who voted, voted against the proposed amendment.

6. A provisional referendum certificate dated 12th November, 2012, was published in Iris Oifigiúil on the 13th November, 2012.

7. The appellant commenced two proceedings in the High Court.

8. The appellant had a plenary summons issued on the 19th November, 2012, against the Minister. The appellant sought a number of

remedies, including: a declaration that the provisions of ss. 42(3) and 43 of the Referendum Act, 1994, are invalid, having regard to

the Constitution; a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003, that the provisions of ss.

42(3) and 43 of the Referendum Act, 1994, are incompatible with the European Convention on Human Rights; that the Minister had

acted in breach of the appellant’s rights pursuant to the Constitution, in particular the preamble, Articles 5, 6, 11, 16, 17, 28, 29, 34,

40, 41, 42, 46 and 47; and, that the State had acted in breach of the appellant’s rights pursuant to the European Convention on

Human Rights, in particular Articles 6, 10, 13 and 14 thereof.

9. On the 21st November, 2012, the appellant sought leave to present a petition pursuant to s. 42 of the Referendum Act, 1994, in

respect of the referendum on the proposed amendment of the Constitution in the Thirty First Amendment of the Constitution

(Children) Bill, 2012, held on the 10th November, 2012. The application was adjourned until the 16th April, 2013.

10. The application for leave in relation to the petition was heard over 14 days in April and May 2013.

11. By agreement, and at the direction of the High Court, the evidence adduced by the appellant was considered for the purpose of

both proceedings.

High Court judgments

12. In a judgment delivered on the 18th October, 2013, [2013] IEHC 458, the High Court (McDermott J.) held, on the basis of the

findings of the Supreme Court in McCrystal, and the evidence adduced in the course of the proceedings, that the appellant had

established a “prima facie case” pursuant to s.42 of the Referendum Act, 1994, and granted leave to the appellant to present the

petition.

13. The Court went on to hold, however, that it was not satisfied on the balance of probabilities, that the appellant had succeeded in

adducing cogent and reliable evidence to establish that the result of the referendum as a whole was materially affected by the

unconstitutional wrongdoing. As such, the trial judge was satisfied that there was no legal or evidential basis upon which to annul the

referendum certificate, and he dismissed the petition.

14. On the 20th June, 2014, [2014] IEHC 327, the High Court delivered a judgment in relation to the plenary summons which had been

issued by the appellant. The trial judge held that the provisions of ss.42 and 43 embody a rational and proportional onus and standard

of proof which may, on occasion, be difficult to discharge, but are not inherently impossible to discharge. It was held by the trial

judge that the onus and standard of proof are such that the principle of the freely exercised power of each voter and the equality of

voting power as represented by the result, are so respected.

15. The trial judge rejected the argument made by the appellant that, once a breach of the McKenna principles has been established,

an absolute rule applies which required the result of the referendum to be set aside. Such a finding, he held, would be

disproportionate and incompatible with the sovereignty of the People. The trial judge was not satisfied, having regard to the evidence

and submissions made, that the appellant had rebutted the presumption of constitutionality as it applies to the challenged provisions.

16. The trial judge was satisfied that the remedy as provided by this Court in McCrystal, namely a declaration that the Minister

committed a breach of the McKenna principles and the provisions of the Referendum Act, 1994, provided an immediate, adequate and

effective remedy for the breaches of constitutional rights. For this reason the trial judge rejected also the argument made by the

appellant under the European Convention on Human Rights Act, 2003.

Notices of Appeal

17. The appellant has brought an appeal against the judgment of the High Court on the plenary summons, filing fifty grounds of

appeal, some of which contained a number of sub-paragraphs, and sought a number of declaratory reliefs. The appellant has also filed

a notice of appeal in relation to the judgment of the High Court on the petition.

18. These appeals were heard together, by agreement, and this judgment relates to both appeals.

Referendum process commenced

19. The Thirty First Amendment of the Constitution (Children) Bill, 2012, was passed by both Houses of the Oireachtas on 3rd

October, 2012, and polling day was appointed as 10th November, 2012.

20. On the 16th October, 2012, the Referendum Commission launched a public information campaign.

21. Separately, the Minister for Children and Youth Affairs also commenced an information campaign. This campaign included a

website, and, on 19th October, 2012, the commencement of delivery of an information booklet to all homes, as well as television,

radio and print advertisements.

The McCrystal Ruling

22. On the 8th November, 2012, this Court delivered a ruling in McCrystal v. The Minister for Children & Youth Affairs & ors [2012] 2

I.R. 726. The matter was dealt with as a matter of urgency as Mark McCrystal sought declarations, an injunction, and consequential

orders, related to the referendum taking place on the 10th November, 2012. Having referred to the McKenna principles, the Court

ruled:-

“(4). The McKenna principles may be found in the several judgments in that case. These principles, which are not in

dispute, are consistent with standards recognised both nationally and internationally for a Referendum process, such as

the European Commission for Democracy through Law (Venice Commission), Code for Good Practice on Referendums,

adopted by the Council for Democratic Elections at its 19th Meeting (Venice, 16 December, 2006) and the Venice

Commission at its 70th Plenary Session (Venice, 16 – 17 March, 2007).

(5). At issue in this case is the application of these principles to a booklet and a website, both entitled “Children’s

Referendum”, and advertisements, published and disseminated by the Department of Children and Youth Affairs, on foot of

moneys voted by the Oireachtas, which the appellant submits breach the McKenna principles.

(6). The Court is required to give its decision promptly, in view of the pending Referendum to be held on Saturday, 10th

November, 2012. The substance of that proposal is a matter for the people alone. The Court will give its ruling today and

judgements will be delivered on Tuesday, 11th December, 2012.

(7). The Court has concluded that it is clear that there are extensive passages in the booklet and on the website which

do not conform to the McKenna principles. This material includes a misstatement, now admitted to be such, as to the

effect of the Referendum.

(8). The Court is satisfied that while not all of the website or the booklet are in breach of the McKenna principles,

because of the overall structure of the booklet and website, it would not be appropriate for the Court to redact either.

(9). Accordingly, the Court would grant a declaration that the respondents have acted wrongfully in expending or

arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the

Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial. The

Court does not consider it either appropriate or necessary to grant an injunction, as it is to be assumed that the

respondents will cease distributing and publishing the material.”

McCrystal – Judgments

23. On the 11th December, 2012, the Court delivered judgments in McCrystal. It held that for the Court to intervene in the exercise

by a Government of its executive functions, the Government had to act in clear disregard of the powers and duties conferred on it by

the Constitution. The use by the Government of public funds for a campaign promoting a particular outcome in a referendum was an

interference with the democratic process and the constitutional process for the amendment of the Constitution. It was held that the

information in the booklet, website and advertisements published by the Minister was not fair, equal, impartial or neutral and the

Government had therefore acted in clear disregard of the principles in McKenna .

24. However, it had been submitted to the Court that the State defendants believed they had complied with the decision of this

Court in McKenna. The bona fides of the State was not controverted. I held at paras. 86 - 88:-

“The Minister was spearheading the Government campaign in the referendum process. In the circumstances, it is

manifestly clear that the Minister believed that a “Yes” vote in the referendum would be a good thing.

It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to

publish neutral information on the referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her

Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a “Yes” vote, to draft

and publish neutral information. This role may be best performed by a body not invested in the referendum.

In all the circumstances of this case, as have appeared before the court, I am satisfied that the defendants acted in a

bona fide manner.”

Questioning the validity of a provisional referendum certificate - The Referendum Act, 1994, as amended

25. At the core of the appeal is the Referendum Act, 1994, as amended, referred to as “the Act of 1994”. Part IV of the Act of 1994

provides the statutory process by which a provisional referendum certificate may be challenged. It provides the procedure for the

bringing of a petition under the Act of 1994.

26. Section 42 states as follows:-

“42.—(1) The validity of a provisional referendum certificate may, and may only, be questioned by a petition to the

High Court (in this Act referred to as “a referendum petition”) in accordance with this Act.

(2) A referendum petition in relation to a provisional referendum certificate shall not be presented to the High Court

unless that court, on application made to it in that behalf by or on behalf of the person proposing to present it not

later than seven days after the publication in Iris Oifigiúil of the certificate, by order grants leave to the person to

do so….”

27. Thus, the validity of a provisional referendum certificate may be questioned only by way of petition, as set out in the Act of 1994.

Further, the application in relation to a referendum petition must be made not be later than 7 days after publication in Iris Oifigiúil of

the provisional referendum certificate. In addition, the petition process will proceed only if the High Court grants leave.

28. These requirements reflect the fact that the People are sovereign in Ireland, and that the referendum process is one of the key

methods by which they express their views. Thus, any intervention with the voice of the People has to be strictly compliant with the

law and the Constitution.

Grant leave

29. The High Court may only grant leave for a petition within the circumstances set out in s. 42(3) and s. 42(4). Section 42(3)

provides:-

“(3) The High Court shall not grant leave under subsection (2) to present a referendum petition unless it is satisfied

—

(a) that there is prima facie evidence of a matter referred to in section 43 in relation to which the

referendum petition questions the provisional referendum certificate concerned, and

(b) that the said matter is such as to affect materially the result of the

referendum as a whole.

(4) An application for leave to present a referendum petition may be made by the Director of Public Prosecutions or

by any person who is registered or entitled to be registered as a presidential elector.”

30. Therefore, the High Court shall not grant leave to an applicant to present a petition unless two conditions precedent are met

being, that there is prima facie evidence of a matter referred to in s. 43, and that the terms of s. 42(3)(b) are met. I shall return to

these two matters later.

31. Also, the standing required to seek such a petition is limited, and identified as the D.P.P., or any person who is registered or

entitled to be registered as a presidential elector. This requirement must be met also.

32. Thus, section 42 of the Act of 1994 provides the mechanism by which a provisional referendum certificate may be challenged;

provides conditions precedent; provides a tight timeframe within which the application may be brought; and limits those who may

bring such an application.

Petition – a two stage process

33. The legislation provides for a two stage process, whereby a person seeking to question the validity of a provisional referendum

certificate must first seek the leave of the High Court pursuant to s. 42 of the Act of 1994. In the second stage the provisional

referendum certificate may be addressed in a trial.

34. I adopt and apply the interpretation and approach to the legislation as stated by Barrington J. in Hanafin v. Minister for the

Environment [1996] 2 I.R. 321 at p. 456.

“A citizen wishing to present a referendum petition must first obtain the leave of the High Court pursuant to s.42 of the

Act of 1994. The High Court may not grant such leave unless it is satisfied that there is prima facie evidence of a matter

refereed to in s.43 of the Act of 1994 (a) in relation to which the referendum petition questions the provisional

referendum certificate concerned and (b) that the said matter is such as to affect materially the result of the referendum

as a whole.

The application will usually be ex parte and no doubt affidavit evidence will be sufficient to establish prima facie evidence

at this stage of the proceedings. When, however, it comes to the trial of the referendum petition the petitioner will have

to produce his witness.

At this stage the petitioner has to attack a provisional referendum certificate purporting to record the decision of the

people at the referendum.” (emphasis added)

35. Thus, in general, there is a two step process. Both conditions precedent have to be met at the leave stage. At the leave stage

an applicant has to prove that there is prima facie evidence of a matter as required by the statute, and that the said matter is such

as could affect materially the result of the referendum as a whole. No issue is determined finally at the leave stage, except whether

or not the petition may proceed to a hearing.

36. In this case the parties agreed, and the High Court directed, that there be a single hearing. Thus, this case is an exception to the

general rule that there is a two stage process.

37. Quite apart from being contrary to the legislative scheme, a single hearing may lead to conflation of issues and factors. By having

both the initial application, which is usually heard ex parte, and the petition, at which all parties appear, heard together, there may

be a degree of confusion, a lack of clarity, and issues may get confused in a manner which results in a conflict with the statutory

procedure. Also, it is important that petitions be heard and determined with expedition. The process adopted here led to lengthy

proceedings.

38. I would dismiss the primary arguments, most expertly presented, of Mr. Sreenan S.C., for the appellant, where he argued that on

a correct statutory interpretation, once the petitioner gets leave to present, and does present, the petition, the burden is simply to

establish the irregularity in the conduct of the referendum on the balance of probabilities, and that in this case the irregularity was

already established. I am satisfied that on a true construction of the Act of 1994 the two conditions precedent remain to be proved

at the hearing of the petition. In this case “the matter” had been determined in McCrystal, but there remained the second condition

precedent to be proved. This was for the petitioner to prove.

39. I would dismiss also Mr. Sreenan’s submissions that once the petition is presented the “effect” of the conduct under s. 43 is

relevant only as a defence via the saver clause for the respondent to demonstrate, in an appropriate case. I would also dismiss the

submission further, that the saver clause anyway does not apply to a McKenna breach because by definition a “McKenna breach” is a

breach of the principles of the Act, and a saver clause does not apply in those circumstances. I am satisfied that the issue of the

affect of “the matter” on the referendum as a whole is a matter to be proved by the petitioner, it is not a matter for the respondent.

Further, the fact that in this case there is a McKenna breach does not absolve a petitioner from proving that second condition

precedent required by s. 42 of the Act of 1994. While it was true that the appellant came to court with an irregularity already

established, that is only part of one of the conditions precedent. The burden of proof remained upon the appellant to prove all the

requirements set out in s. 42 of the Act of 1994.

40. Thus, the primary submissions made on behalf of the appellant fail.

41. Mr. Sreenan S.C., submitted that if they were wrong in their primary argument, in the alternative, that a constitutional and

correct statutory interpretation means either that there must be an enquiry, where the appellant had no onus of proof, or that the

burden shifts and the shifting of the burden is supported by ss. 48(2) and 43(3) of the Act of 1994.

42. I would dismiss these submissions also as to the construction of the relevant sections of the Act of 1994.

Standard of proof

43. The petition process is a two stage process, as described earlier. At the initial stage, at the hearing of the application for leave,

the Court has to determine if there is a prima facie evidence of a matter referred to in s. 43, in relation to which the referendum

petition questions the provisional referendum certificate, and that the matter is such to affect materially the result of the referendum

as a whole.

44. At the second stage, at the hearing of the petition, the issues have to be addressed and the standard of proof is on the balance

of probabilities.

Petition – onus of proof

45. At both the application for leave, and at the hearing of the petition, the onus of proof rests on the petitioner at all times. There is

no shifting of the burden of proof to the respondent at any stage of the process.

Prima facie evidence of a matter referred to in s. 43 of the Act of 1994

46. As referred to earlier, there are two conditions precedent set down in s. 42 of the Act of 1994, to the granting of leave. The first

is that there be prima facie evidence of a matter referred to in s. 43, in relation to which the referendum petition questions the

provisional referendum certificate.

47. In this case this Court had already determined in McCrystal that the Minister had breached the McKenna principles. This was “the

matter” which met the first condition precedent at the leave stage in this case.

48. However, even when there has been a breach of the McKenna principles the court at the leave stage is required to consider the

second condition precedent set out in s. 42 of the Act of 1994. For, the High Court “shall not grant leave” unless both conditions

precedent are met. While a breach of the McKenna principles may meet the requirement of the first condition precedent, it is then for

the High Court to consider the second condition, i.e., whether “the matter is such as to affect materially the result of the referendum

as a whole”.

I shall consider this second condition precedent in s. 42(3)(b) word by word.

“The said matter is such as to affect materially the result of the referendum as a whole”

49. “The matter” refers, in this case, to the breach of the McKenna principles by the Minister, and thus does not require to be

considered any further at this stage.

50. “Is such as to affect materially” refers to the breach of the McKenna principles and its “affect”. “Affect” in its ordinary sense

means to produce an effect on, to alter or to change. Thus, the issue arises as to whether the breach of the McKenna principles by

the Minister altered or changed the result.

51. However, the word “affect” is also qualified by the word “materially”.

52. The word “materially” is defined in the Oxford Dictionary as “substantially”. Thus, in the ordinary meaning of the words the word

“affect” is qualified by the concept “substantially”.

53. Section 42(3)(b) then concludes with the words: “the result of the referendum as a whole”. These are clear words and may be

construed literally. They refer to the result, i.e., the outcome, of the entire referendum.

54. In other words, s. 42(3)(b) requires that it be proved that the matter substantially altered or changed the outcome of the entire

referendum.

Grounds in section 43

55. Section 43 of the Act of 1994 provides the grounds on which the provisional referendum certificate may be questioned, stating

that:-

“43.—(1) A referendum petition may question a provisional referendum certificate on the grounds that the result of the

referendum as a whole was affected materially by—

(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6 ),

(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.

(2) Notwithstanding any other provision of this Act, a referendum petition shall not be dismissed on account of any

informality in its contents which does not materially affect its substance.

(3) A provisional referendum certificate shall not be questioned by reason of a non-compliance by the Referendum

Commission with any provision contained in the Referendum Act, 1998, or mistake made by the Referendum Commission if

it appears to the High Court that the Referendum Commission complied with the principles laid down in that Act and that

such non-compliance or mistake did not materially affect the result of the referendum.”

56. The essence of s. 43 is that a referendum petition may question a provisional referendum certificate on the grounds that “the

result of the referendum as a whole was affected materially by”

one of the matters listed from (a) to (d).

57. This resonates with the requirement in the second condition precedent in s. 42(3)(b):-

“that the said matter is such as to affect materially the result of the referendum as a whole”.

58. Thus, as stated in s. 43 the Act of 1994, it is required that a petitioner prove that “the result of the referendum as a whole was

affected materially” by the matter raised.

59. These words in s. 43 have the same meaning as the words in section 42. The words “the result of the referendum as a whole was

affected materially” are to be construed consistently, and literally.

60. Thus, the words “the result of the referendum as a whole was affected materially” by the matter raised, means that a petitioner

is required to prove that the outcome of the referendum as a whole, the result, was altered or changed substantially by the matter

raised; in this case the breach of the McKenna principles by the Minister. In other words, the petitioner has to establish that the

breach of the McKenna principles by the Minister substantially altered or changed the outcome of the entire referendum.

61. The fundamental requirement in the statute of this proof by a petitioner, is reflected also in the terms of s. 43(2), which excludes

the questioning of a provisional referendum certificate on account of informality “which does not materially affect its substance”.

62. Section 43(2) also excludes questioning of a provisional referendum certificate for non-compliance or mistake by a Referendum

Commission, where such non-compliance or mistake “did not materially affect the result of the referendum”.

63. However, the process centres on s. 43(1), which enables questioning of a provisional referendum certificate on the grounds that

the result of the referendum as a whole was affected materially by (a) to (d), which in this case was the breach of the McKenna

principles by the Minister.

64. Section 48 is consistent with this construction. I shall address this section later in the judgment.

Evidence

65. It was also submitted on behalf of the appellant that the amount of evidence that the appellant adduced in the case, which it

was stated was the best that one could be expected to do as a normal litigant, is sufficient to shift the burden. It was submitted

further that to require anything else of the petitioner would be requiring the petitioner to do something that was impossible for an

ordinary litigant.

66. The evidence presented by the appellant was heard by the learned trial judge, considered and the application was dismissed.

67. The learned High Court judge pointed out that the evidence advanced by the appellant consisted of two parts. First, there was

the evidence of individuals, including the petitioner, who referred to the referendum campaign and to the effect of the government

information materials on them, and of the McCrystal ruling. Secondly, there were expert witnesses on behalf of the appellant who

testified in support of the proposition that the Minister’s campaign had affected materially the referendum result as a whole. The

Minister also relied on expert witnesses who contradicted that proposition.

68. Having analysed the evidence given by the individuals, the petitioner, Mr. Nicholas Gargin, Mr. Michael Fitzgibbon, Mr. Daniel Ward,

Ms Deirdre Uí Ghoibin, Mr. John Waters, the learned High Court judge held:-

“Each of the witnesses gave useful and honest accounts of their experiences during the course of the Referendum

campaign and their impressions of the government materials and information. These impressions were vindicated by the

ruling and judgments of the Supreme Court in the McCrystal case. Some of the more generalised conclusions reached by

the witnesses about the affect of the materials are highly speculative and subjective. I have considered all this evidence

and it is clear that without something more tangible and objective, this evidence would be entirely insufficient to justify

the granting of leave to present a petition or to establish that the overall referendum result had been materially affected

by the Government information campaign. However, the petitioner also relied upon expert testimony in respect of the

Government information campaign.”

69. There was ample evidence upon which the High Court could reach the conclusion it did in relation to the said individuals’ evidence.

70. There was extensive expert evidence before the High Court. This included evidence given by Dr. Michael Bruter, a reader in

political science, specialising in electoral psychology, at The London School of Economics and Political Science. Professor Michael

Marsh, Professor of Comparative Political Behaviour at Trinity College Dublin, whose principal area of expertise was electoral behaviour

including how voters make their choices in elections and referenda, gave evidence on behalf of the Minister. The appellant also relied

upon the evidence of Professor Paul Whitely, Professor of Governance at the University of Essex. His expertise is in the study of

elections, political participation and public opinion, including the methodology or design of surveys conducted to ascertain political

opinion.

71. On the expert evidence given to the High Court, the learned High Court judge held:-

“The court is satisfied that this evidence was completely insufficient to establish that the votes cast in the Referendum

had been materially affected by the information distributed by the government (including the booklet). Dr. Bruter’s initial

evidence set out a number of broad propositions which he acknowledged, required significant qualification and was the

subject of reasonable criticism by Professor Marsh, some of which was based on the realities of the political campaign

conducted in the lead up to the vote. Prof. Marsh and Prof. Whiteley importantly, agreed that there was insufficient data

to enable the type of analysis that might make it possible to determine what influence, if any, the information had on the

course of the campaign and to what precise level. Dr. Bruter also acknowledged the absence of this information but was

satisfied to reach conclusions based on the limited data available. Dr. Bruter advanced additional material in support of his

contentions in two further stages based on his analysis of a post Referendum survey.”

72. Similarly, on the extensive expert evidence, statistical and otherwise, including on the booklet, and on the Post Children

Referendum Poll, which was carefully considered in depth by the High Court, the learned High Court judge concluded:-

“The experts have disagreed over fundamental elements of the survey, the meaning and significance of the questions

posed, interpretation of the percentage figures given and how best to assemble and interpret the data underlying the

figures set out in the survey. I am not satisfied that the petitioner has established, notwithstanding, the booklet’s

widespread distribution, that it materially affected the result of the Referendum as a whole.”

73. There was ample evidence upon which the learned trial judge could reach this conclusion.

74. Also, there were further expert witnesses called to give evidence. Mr. Roger Jupp, Vice Chairman of Millward Brown Lansdowne,

gave evidence as to the Minister’s website. The learned High Court judge concluded:-

“I am not satisfied having regard to the established number of visitors to the website that there is any evidence that the

website had a material effect on the overall result of the Referendum. It is clear that given the size of the majority, it

could not have been decisive, and if it had any effect, it could only have been minimal.”

75. There was ample evidence upon which the High Court could reach this conclusion.

76. There were experts also called to give evidence as to the print, radio and television advertising, which were considered by the

learned High Court judge, but not considered persuasive.

77. The High Court concluded:-

“152. I am satisfied that the evidence adduced by the petitioner has established a fair bona fide or serious issue to be

tried on the grounds set out in the petition. I, therefore, grant leave to the petitioner to present the petition. A good deal

of the evidence, had it stood alone, would not have justified that conclusion. I would not have granted leave if the non-

expert witnesses and Mr. Waters were the only witnesses called, or if Dr. Heath who gave evidence on advertising or the

evidence called concerning the website had stood alone. I would also have had extreme, doubts about granting leave on

the grounds of events which occurred after the McCrystal ruling. However, it is important that the grounds once raised be

considered together because the Supreme Court determination that the McKenna principles had been breached embraced

a narrative that covered the entire Referendum campaign, and government information campaign and included the three

significant elements of the Government booklet, website and advertising. As noted earlier in the judgment, I was satisfied

following the McCrystal judgment under s. 42 that there was prima facie evidence of a matter referred to under s. 43

namely, unconstitutional conduct by the executive. Having heard the evidence in the case, I am also satisfied that the

petitioner raised a serious issue to be tried that the government information campaign had the potential to materially

affect the result of the Referendum as a whole. Though reference was made in the course of submissions to alleged

breaches of Articles 6, 10, 13 and 14 of the European Convention on Human Rights and the "Code of Good Practice on

Referendums" adopted by the European Commission for Democracy Through Law (the Venice Commission), I do not

consider any such ground to be set out in the petition, nor do I consider that the petitioner has advanced any basis upon

which leave to present a petition could be granted in that respect.

153. I have considered all of the evidence and submissions made in respect of the trial of the petition concerning all of

the grounds advanced, and I am not satisfied on the balance of probabilities that the petitioner has succeeded in

establishing those grounds for the reasons which I have set out in the judgment. The petition is dismissed.”

78. It is important to point out that much of the evidence presented to the High Court was of analysis of polls, political behaviour,

political participation, surveys.

79. The appellant presented very extensive evidence on the theory of referendums, statistics, magic numbers, and political analysis

etc. Lengthy evidence was heard from erudite experts.

80. However, a court is required to find facts, and then to apply the law. It is not a forum for academic discourse, whether it be on

political science, statistics or polls. While the expert evidence advanced was admissible, evidence should be addressed to the test

which a court should apply. The test is set out later in the judgment, “the reasonable person” test. Given that that is the test, such

scientific and academic evidence may not be very weighty.

81. Mr. Sreenan S.C. submitted that if they were wrong, if “material affect” on the result is a burden to be borne by the petitioner

that does not shift, it simply means it could or may have affected the result, and that result does not equal outcome, and effect does

not equal change, or alter, but implies a range or spectrum of effects on the size of the overall vote or the number of "Yes” votes or

the number of "No” votes, and that they did enough to demonstrate that, and this is not, as seems to have been suggested, a

question of punishing the voters in any way. The citizens of this country, it was submitted, are punished if the Government is allowed

to change the Constitution via an unconstitutional and untruthful campaign where you cannot say with confidence, and the

Government has been unable to demonstrate with all of its resources, that it did not affect the result.

82. This submission also must fail. “Material affect” on the result is a burden to be borne by the petitioner at all times. That “affect” is

not simply that it could or may affect the result on a range or spectrum. The requirement is that it be proved that it substantially

affected the result as a whole, that it substantially affected the end result. I shall address the requirements as set out in the Act of

1994 later in the judgment.

83. It was also submitted that McKenna was designed to identify and to protect constitutional rights. It was argued that if this

decision in this case is upheld, then McKenna may as well be scrapped as a decision, it was submitted, because there is no ultimate

protection for citizens where the Government have tainted the process of amending the Constitution, and where, if there is a chance

or a possibility or if it could have affected the result, the Constitution stands amended for all times as a result of a tainted process.

84. Citizens have already been protected by the Court’s decision in McCrystal on the 8th November, 2012, which applied the McKenna

principles to circumstances in advance of the referendum on the 10th November, 2012.

85. The decision in McKenna protects the Constitution, and the rights of the voters, and popular sovereignty. Where there has been a

breach of constitutional principles, as here, it is for the Court to balance harmoniously the competing principles. This is not an

impossible situation. The Court is required to find a harmonious balance between competing constitutional rights, and as such this is

an example of the core work of the Court.

Remedies

86. The Act of 1994 provides remedies. Thus, s. 47 states that a court may, for the purposes of a referendum petition, if it thinks fit,

order that all votes cast in a referendum in a constituency be counted afresh, or that all votes cast and recorded on the ballot

papers contained in a particular parcel shall be so counted.

87. Section 48 provides for the re-taking of a referendum. It states:-

“(1) At the trial of a referendum petition the court may order that the referendum to which the referendum petition

relates shall be taken again in a constituency, and where the court so orders the following provisions shall have effect:

(a) the court shall, in its order under this section, appoint the day which shall be the polling day for the purpose of

the retaking of the referendum in the constituency;

(b) the referendum shall be retaken in the constituency and the provisions of this Act in relation to the taking of a

referendum shall apply to the retaking, with the substitution of the polling day appointed by the order of the court

for the polling day appointed by the Minister;

(c) the referendum returning officer, having received the report of the local returning officer of the result of the

counting of the votes at the retaking, shall forthwith report the result to the court.

(2) The court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance

with any of the provisions contained in this Act or an error in the use of forms provided for in this Act where it appears to

the court that the referendum was conducted in the constituency in accordance with the general principles laid down in

this Act and that the non-compliance or error did not affect the result of the referendum as a whole.

88. Thus at the trial of a referendum petition the Court may order that a referendum, to which the referendum petition relates, be

taken again. Where the Court so orders the Court nominates the polling day for the retaking of the referendum, the referendum shall

then be retaken, and the referendum returning officer shall report the result to the Court.

89. The Act of 1994 explicitly enables a court to order that a referendum be taken again in a constituency.

90. There may exist a situation in a constituency where conduct falls within ss. 42 and 43 of the Act of 1994 such that it may have

affected the result of the referendum as a whole. Section 48 would allow a court in such a situation to order the referendum to be

retaken on a constituency by constituency basis, if it should arise.

91. However, s. 48 also enables a court to order the retaking of a referendum as a whole. I reach this conclusion because, under the

Interpretation Act, 2005, a word importing the singular may also be read as importing the plural.

92. Such an approach was discussed by Blayney J. in Hanafin v. Minister for the Environment [1996] 2 I.R. p. 321, although at that

time the relevant Act was the Interpretation Act, 1937. He stated at 444:-

“Nowhere in the Act is an express power given to the Court to direct that the referendum be taken again in every

constituency, though no doubt s. 48 might be construed as impliedly giving that power on the ground that s. 11 of the

Interpretation Act, 1937, provides that ‘every word importing the singular shall, unless the contrary intention appears, be

construed as if it also imported the plural’.”

93. I apply that analysis, and interpret s. 48 in a similar fashion, utilizing the Interpretation Act, 2005. Consequently, it is open to a

court to order the retaking of an entire referendum, when that is a necessary consequence of the court’s order.

94. This Court has already granted a remedy in the circumstances of this case, in its order in McCrystal, which is set out earlier in the

judgment. The issue in this appeal is whether the Act of 1994 applies, and if so, whether further remedies should be ordered.

The plenary proceedings

95. The appellant has appealed against the judgment of the High Court (McDermott J.), delivered on the 20th June, 2014, and against

the order perfected on the 16th July, 2014, which dismissed her challenge to the constitutionality, compatibility with the European

Convention on Human Rights, and consistency with international standards, in particular the Venice Commission Code, of the Act of

1994.

96. The factual background for these proceedings was the same as the petition proceedings.

97. The issues raised by the appellant in these proceedings included the constitutionality of ss. 42(1), 42(3), 43(1), 47, 48 and 57(1)

of the Act of 1994, the onus and standard of proof, the constituency requirement, what was referred to as ‘the non-postponement

lacuna’ remedies for breaching the McKenna principles, the campaign breaches and the post ruling conduct, incompatibility with the

ECHR, and inconsistent with and invalid having regard to internationally recognised standards.

98. A harmonious balance is required between the various constitutional principles and rights arising in this case.

99. The People are the sovereign power in Ireland. As the preamble to the Constitution states, the People:

“Do hereby adopt, enact, and give to ourselves this Constitution”.

100. Further, Article 6.1 of the Constitution provides:-

“All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to

designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the

requirements of the common good.”

101. The day to day government of the State is by elected representatives of the People.

102. However, direct decision making by the People is retained in Article 46 and 47 of the Constitution.

103. Thus, Article 46.2 provides:-

“Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been

passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of

the people in accordance with the law for the time being in force relating to the Referendum”.

104. Article 47 provides for a Referendum. Article 47.1 states:-

“Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people

shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having

been so submitted, a majority of the votes case at such Referendum shall have been cast in favour of its enactment into

law.”

105. It follows that the Constitution belongs to the People of Ireland, and they alone may change it. This type of sovereignty may be

termed popular sovereignty.

106. Hogan J. addressed the issue of popular sovereignty in the Constitution in Doherty v. The Referendum Commission [2012] 2 I.R.

594, where he stated at pp. 603 - 604:-

“The Constitution envisaged a plebiscitary as well as a parliamentary democracy and in doing so it has created a State

which can demonstrate – in both word and deed – that it is a true democracy worthy of the name. By providing in Article

6(1) for popular sovereignty in which the People would ‘in final appeal … decide all questions of national policy’ it

envisaged a society in which all citizens would be called upon from time to time to make critical decisions regarding their

future, the future of their neighbourhood and, ultimately, the future of their country.”

Hogan J. then identified three core principles, and continued on p. 604:-

“The first of these is the concept of popular sovereignty (to which we have just alluded) which is reflected in Article 5,

Article 6, Article 46 and Article 47 of the Constitution. It may thus be said, adapting freely the words of Holmes, that the

theory of popular sovereignty for which Griffith argued and Pearse fought and Collins died and de Valera spoke and Hearne

drafted and Henchy wrote and Walsh decided has become our own constitutional cornerstone. It is that very cornerstone

on which the entire referendum edifice is constructed.”

I gratefully adopt and affirm this analysis.

The Act of 1994 – plenary summons

107. In considering the Act of 1994, the first principle to be applied is that it is presumed constitutional. This presumption is based

upon the respect which one of the great organs of State owes to another. As Henchy J. stated in McMahon v. Leahy [1984] I.R. 525

at pp. 541-542:-

“The presumption of constitutionality extends to both the substance and the operation of a statute: it is a presumption

that admits of rebuttal only by a contrary intention appearing in the terms of the statute itself.

Therefore, I would reject the submission of counsel for the defendant that where none of the statutory grounds of

exemption from extradition is shown to apply, and the statutory requirements for extradition have been otherwise

satisfied, a judicial order allowing extradition must necessarily issue. To hold otherwise would be tantamount to saying

that the Court’s function in such circumstances is mechanical, discretionless and without regard to the fact that its order

will have an unconstitutional impact on the person to be extradited. Such a conclusion would mean a misinterpretation of

the true functions, under the Constitution, of both Parliament and the Courts. Save where a contrary intention is

disclosed, there should be attributed to the statutes of Parliament and to the orders of the Courts a capacity and an

intent to operate within constitutional limitations.”

108. Secondly, the Act of 1994, and the specific sections raised by the appellant, represent a balance which has been struck by the

Oireachtas between the rights of the People to express their views in a referendum, and the rights of individuals, so that a

referendum may be set aside in the circumstances provided for.

109. Thirdly, in the Act of 1994, the Oireachtas provides a clear scheme by which specified issues regarding a provisional referendum

certificate may be raised in the High Court.

110. As discussed earlier, section 42 of the Act of 1994 provides the process whereby a query may be raised of a provisional

referendum certificate. This two stage process includes the following:-

(i) First, leave must be obtained, followed by a trial of the petition.

(ii) The petition application must be brought in the High Court.

(iii) It must be brought within seven days after the publication in Iris Oifigiúil of the certificate.

(iv) The process may only proceed if the High Court grants leave.

(v) The High Court may only grant leave if the conditions set out in the legislation are met.

(vi) There are two conditions precedent:-

(a) There must be prima facie evidence of a matter referred to in s. 43 of the Act of 1994; and

(b) The said matter must be such as to affect materially the result of the referendum as a whole. In other words,

the issue for the High Court is whether the matter (in this case the breach of the McKenna principles) substantially

produced an effect on the result of the referendum process as a whole.

(vii) Both conditions precedent must be met at the leave stage, and both are in issue at the trial stage of the petition.

(viii) The onus of proof remains on the petitioner at all times.

(ix) The burden of proof on a petitioner reflects the relief sought. The burden of proof is such as to respect the

constitutional right of the citizen to vote in a constitutional referendum and have the result respected, unless it is proved

that the matter raised affected materially the result of the referendum as a whole. At the application for leave stage the

applicant must prove to the satisfaction of the High Court that there is prima facie evidence of a matter referred to in s.

43 of the Act of 1994, such as to affect materially the result of the referendum as a whole. At the time of the petition

the applicant must prove the application on the balance of probabilities.

111. This is the process, as set down in the legislation, for querying a provisional certificate of a referendum.

112. This process is not the same as a challenge to an action of the Government, or others, during a referendum campaign.

113. As O’Donnell J. stated in McCrystal v. The Minister for Children and Youth Affairs & Ors [2012] 2 I.R. 726 at p. 826:-

“There is a large and constitutional distinction between restraining a breach of the Constitution by the Government (or

anyone else) occurring in the course of a referendum campaign, and the interference with and setting aside of, a decision

made by the People whose right it is in final appeal to decide all questions of national policy. In the event, the divorce

referendum, which was the background to McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10 itself, provides a clear

demonstration of the fallacy of this reasoning. The Government campaign was in fact restrained by the Supreme Court in

McKenna v. An Taoiseach (No. 2) but the subsequent decision of the People was not set aside although challenged in

Hanafin v. Minister for the Environment [1996] 2 I.R. 321 where the petitioner relied on the self-same breaches of the

Constitution which had been established in McKenna v. An Taoiseach (No. 2) and, for good measure, some further matters

which emerged thereafter. If the test of material effect as applied in Hanafin v. Minister for the Environment is applicable

in the situation of McKenna v. An Taoiseach (No. 2) is to be understood as an implicit application of the material effect

test then the petitioner in Hanafin v. Minister for the Environment ought to have succeeded. It is apparent that a

different standard applies in any application to set aside the decision of the People once given, and for good reason.”

114. I endorse this analysis. There is a significant difference between the circumstances in proceedings during a referendum

campaign, when an issue is raised as to whether a Government has breached constitutional principles, and the circumstances of

proceedings after the People have voted in a referendum process, when they have exercised their right under the Constitution to

decide questions of national policy. Such a situation occurred previously in Hanafin, which illustrates the distinction. While that was a

petition appeal, the issues raised there, and in the petition appeal in this case, have been addressed already.

115. In Hanafin v. The Minister for the Environment [1996] 2 I.R. 321, this Court considered the Act of 1994 from the perspective of

the Constitution and a breach of the McKenna principles. It was held that the term “conduct of the referendum” in s. 43 should be

construed broadly so as to defend and vindicate the democratic process and the constitutional rights of the citizen. Hamilton C.J.

stated at p. 424:-

“The defence and vindication of such rights requires that the words ‘the conduct of the referendum’ contained in s. 43,

sub – s. 1(b) and (d) should be interpreted sufficiently widely to include unlawful and unconstitutional conduct in the

referendum campaign which materially affected the result of the referendums. There is nothing in the other provisions of

the Act which prevents this construction, which construction accords with the provisions of the Constitution.”

I agreed with that broader construction of the terms “conduct of the referendum” in Hanafin, in 1996, and I continue to be of that

view.

116. The appellant raised the issue of onus of proof on this appeal. I have already addressed the issue in relation to the petition. The

onus of proof lies on the appellant. As I stated in Hanafin at p. 451:-

“This is a civil case involving fundamental constitutional principles. The onus of proof lies with the petitioner and remains

that of the balance of probabilities. No higher degree of proof is required. I agree with the analysis and determination in

the judgment of Barrington J.

This burden and onus must be viewed in the constitutional, context. I would adopt the approach of McCarthy J. in

Finucane v. McMahon [1990] 1 I.R. 165 at p. 226 when he stated (of an application for extradition):-

‘In my view, the courts charged with the protection of the Constitution and of the citizens whose fundamental

rights are thereby guaranteed defence and vindication would fail in their duty if, being satisfied that there is a real

danger that a citizen delivered out of the jurisdiction will be ill-treated, did not refuse to permit such delivery. In the

light of that, the courts must look at the circumstances of each case.’

The situation of the petitioner under the Act of 1994 is similar to an applicant seeking to avoid extradition in that the consequences

of failure to both are irretrievable. In both instances the courts have the duty to protect the individual rights of the citizens. In both

instances there is a duty also to protect the Constitution: in this instance, the referendum process. The Court would fail in both

duties and responsibilities if, satisfied that there was a real danger to either the process or the individual’s rights, it did not act

accordingly. To determine these matters the Court has to look at the circumstances, the facts, which in this case it is required to

consider under the Act.”

117. The finding of the Court in McCrystal does not mean that the referendum request should be set aside solely on that basis. The

provisions of the Act of 1994 require to be met, including the two conditions precedent discussed earlier in this judgment. The

situation post the referendum is different to that prior to the referendum. The sole issue in McCrystal was whether the Minister had

breached the McKenna principles. After the holding of the referendum a balance of rights has to be determined by the Court,

balancing the breach of the McKenna principles on the one hand and the consideration of an interference with the decision of the

People in the referendum on the other.

Secrecy of Ballot

118. The standard to be applied by a court does not conflict with the secrecy of the ballot.

119. The secrecy of the ballot is an important constitutional principle and is not contrary to the process provided in the Act of 1994.

Even if it were, which it is not, it is a principle which can be applied harmoniously to issues in an application on a provisional

referendum certificate. As Henchy J. stated in Dillon-Leech v. Sean Calleary & Ors (Unreported Supreme Court, 31st July, 1974):-

“If an election is upheld because although a breach of secrecy has or may have occurred it could not have affected the

result, the court will be over looking a breach of the constitutionally recognized principle of the secrecy of the ballot in

elections for Dail Eireann; see Art. 16, s. 1, subs. 4, of the Constitution. This, however, is because the courts will not

allow an electorally ineffective breach of that principle to be used to set aside the correctly exercised constitutional right

of the rest of the citizens forming the electorate in the constituency to elect their representatives in Dail Eireann: see

Art. 16, s. 1, subs. 2, of the Constitution. To hold otherwise would be as much an inversion of constitutional priorities as

to hold that an election in a particular constituency should be set aside merely because a voter or particular voters voted

more than once (in breach of the prohibition in Art. 16, s. 1 subs. 4, against so doing) but not so as to have affected the

result of the election. In such cases, where the court is confronted with the inescapable necessity of. giving effect to

one or other of two constitutional principles or rights, it should opt for the one that is more essential to the smooth and

harmonious operation of the Constitution in the light of its basic assumptions and primary aims: see. e.g. Quinn’s

Supermarket v. Attorney General 1972 I.R. 1.”

120. Henchy J. illustrates the primary constitutional position, in a hierarchy of rights, of the rights of the People to their decision in an

election. It follows that a decision of the People in a referendum, in light of the Constitution, has a primary position in a hierarchy of

rights, but that it should be applied harmoniously.

Standard

121. The standard to be applied requires a harmonious balance between the breach of the McKenna principles, the exercise of popular

sovereignty, together with the balance which has been struck by the Oireachtas in the Act of 1994.

122. The standard requires that, on a petition application in relation to a provisional referendum certificate, a court has a duty to

protect the individual rights of a citizen and to protect the People’s participation and vote in the referendum.

123. The test to be applied by a court is an objective test, an objective consideration of the facts, whether a reasonable person

would have a reasonable apprehension that the matter raised by an applicant materially affected the result of a referendum as a

whole, so that they could not trust the referendum result.

124. This test is similar to that determined in Bula Limited v. Tara Mines Ltd (No. 6) [2000] 4 I.R. 412. At p. 441 I described the test

as:-

“The submissions in relation to the test to be applied roved worldwide. However, there is no need to go further than this

jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the

circumstances would have a reasonable apprehension that the applicant would not have a fair hearing from an impartial

judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person.”

125. Applying the objective reasonable person test, it does not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test, it invokes the apprehension of the reasonable person. The reasonable person would

have a reasonable knowledge of the referendum process.

The Test

126. Thus, in this case the Court clarifies the test to be applied when a provisional referendum certificate is challenged. For clarity, I

adopt the words of O’Donnell J. i.e.

“ … that ‘material affect on the outcome of a referendum’ involves establishing that it is reasonably possible that the

irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to

add that the object of this test is to identify the point at which it can be said that a reasonable person could be in doubt

about, and no longer trust, the provisional outcome of the election or referendum.”

127. This test is to be applied in all the circumstances of the case. Of course, the circumstances and facts will change from case to

case, but the object is to obtain a balance where it is not too easy to overturn the decision of the People, nor impossible.

Factors

128. In applying the test, the factors of each case have to be considered. The circumstances may include, and do include in this

case, the factors set out below. But this is not a conclusive or exhaustive list.

129. “The matter” raised by an applicant, which gave rise to the petition, is an important factor. In this case it has been analysed

already in the McCrystal judgments. In McCrystal it was held that the use by the Minister of public funds for a campaign promoting a

particular outcome in a referendum was an interference with the democratic process and the constitutional process for a referendum

and infringed the concepts of equality, fair procedures and freedom of expression. This “matter” raised was the use of public funds in

the publication of a booklet, website and advertisements in the time prior to the referendum. The booklet, website and

advertisements on their fact failed the test of being fair, equal and impartial. The details of the findings of this Court as to the

booklet, website and advertisements are set out in the judgments in McCrystal.

130. A factor for consideration may be the actions of the creator of “the matter”. In this case, as set out earlier in this judgment, I

held at the hearing of McCrystal that, in all the circumstances as appeared before the court, I was satisfied that the Minister acted in

a bona fide manner.

131. In this case the amount of money spent by the Minister out of public funds is a factor. The Minister used €1.1m. of public funds

in the campaign for the referendum.

132. However, the most important factor in this case, and perhaps in most such cases, is the voting figures in the referendum.

133. In this case a provisional referendum certificate was published in Iris Oifigiúil dated 12th November, 2012, on 13th November,

2012. It set out the result as follows:-

• The total number of votes recorded in the referendum in favour of the proposal was 615,731.

• The total number of votes recorded in the referendum against the proposal was 445,863.

• A majority of the votes recorded at the referendum was recorded in favour of the proposal.

Thus 33.49% of the eligible electorate voted. 58% of those who voted, voted in favour of the proposed amendment. 42% of those

who voted, voted against the proposed amendment. The margin between those who voted in favour and those who voted against is a

significant factor.

134. There may be other relevant factors in any individual case.

135. An additional factor in this case is that a remedy has already been granted against the Minister in McCrystal. On the ruling of the

Court in that case, in advance of the referendum, the Minister ceased the activity complained of. There also was publicity arising from

the Court’s decision in the two days before the referendum.

Application of the test

136. Applying the test, as stated, to the factors in the case, it has not been established that it is reasonably possible that the

actions of the Minister materially affected the outcome of the referendum as a whole. I am satisfied that a reasonable person could

not have a doubt about, and would trust, the provisional outcome of the referendum.

137. A referendum petition is not a tool for a disappointed voter, or a group of voters, to seek to manipulate the constitutional

process of a referendum in which the People determine national policy.

Additional issues

138. I have considered the kernel issues raised on this appeal. However, there were some additional issues aired also.

139. The “constituency” requirement has been referred to already. The appellant submitted that the absence of an express provision

in the Act of 1994 permitting the Court to order a full recount of the referendum in all constituencies contributed to the

ineffectiveness of the Act of 1994 as a remedy for a breach of the McKenna principles. However, as already discussed, and as is

apparent from the Hanafin decision, the Act of 1994 clearly contemplates the Court making an order for the retaking of a referendum

poll in every constituency. Thus, such a remedy is open to a Court when there has been a breach of the McKenna principles.

140. Similarly, the issue of an order annulling a referendum was raised by the appellant. The Act of 1994 provides a remedial scheme,

as already discussed and recognised, to enable a court order the retaking of a referendum in all constituencies. Thus, there is a full

remedial process in place.

141. The appellant also submitted that the Act of 1994 is invalid because it does not allow the Government to postpone a referendum

for a relevant period to remedy any wrongful conduct. While the Minister argued that it was open to the Oireachtas to pass

emergency legislation to postpone a referendum, that is not the only remedy. It is also possible for an appellant to apply for an

injunction from a court. In Fitzgibbon v. Ireland [2001] IESC 207, the possibility was left open that a court might intervene to order

the postponement of a referendum poll. However, the fact that this Court is considering a provisional referendum certificate, and has

the power to order a retaking of a referendum, ensures that an appellant has an effective remedy.

142. The appellant submitted that there were additional breaches of the McKenna principles after the ruling of this Court in McCrystal.

The learned High Court Judge held at paras. 147 - 149:-

“I am not satisfied on the evidence adduced that the Ministers cited showed disrespect for or sought to obfuscate the

effect of the Supreme Court ruling. I have viewed the materials and listened to the recordings produced to the court in

respect of these matters. It is clear from these materials that there was a robust engagement between at least one of

the interviewers and the Minister for Justice, Equality and Defence in relation to the affect of the ruling on RTE news.

Those listening to the exchanges or reading the newspaper reports of the ruling can have been in no doubt of the nature

of the Supreme Court ruling. I am not satisfied that the Supreme Court ruling in the McCrystal case could be said not to

have had an immediate impact. It was a short, focused and definitive condemnation of the expenditure of public funds by

the government on a partisan information campaign as a breach of the Constitution and was reported as such. This gave

rise to a robust public debate and engagement on the issues raised by the ruling.

The respondents also submit that the Minister for Children and Social Affairs issued a press release in which she

acknowledged that the Supreme Court had found that some of the material published by her department in connection

with the Children Referendum did not comply with the McKenna principles. I am satisfied that she demonstrated respect

for the Supreme Court judgment in its criticism of the unconstitutional expenditure of public funds and undertook that the

government would comply fully with the judgment of the court. On the same date, the Minister informed the Seanad of

the Government's intention to act on the ruling and to cease distribution and publication of materials. On the same

evening she apologised to the Irish people in clear terms stating that she was "extremely sorry that this happened. I

would not have wanted this to happen, absolutely not".

On 8th November, the material on the website was edited by reference to the Supreme Court ruling and it was taken

offline completely on the morning of 9th November. Advertisements scheduled to appear in five national daily and one

local newspaper on 9th November, as well as proposed publication in another free sheet newspaper, were cancelled. Radio

and television advertisements scheduled to be broadcast on 8th, 9th and 10th November were cancelled. On 8th

November the department also issued a notice to public bodies, including libraries, citizen information centres and family

resource centres, requesting that copies of the criticised booklet be removed from public display. I am not satisfied that

there is any evidence upon which to base a claim that the action of any Minister or the Government following the

Supreme Court ruling in any way contributed to the obstruction of or interference with or hindrance of the conduct of the

Referendum or, amounted to conduct which was unconstitutional, and interfered in any way with the constitutional rights

of citizens or the democratic process.”

143. The learned High Court judge had the evidence before him, which he clearly considered carefully. Applying the principles set out

in Hay v. O’Grady [1992] 1 I.R. 210. I would affirm his decision and dismiss the appeal raised on this ground.

144. The appellant contended also that, as well as being invalid having regard to the Constitution, that the Act of 1994 is

incompatible with the European Convention on Human Rights, especially the right to a fair trial, Article 6, freedom of expression,

Article 10, right to an effective remedy, Article 13, and prohibition on discrimination, Article 14.

145. I would dismiss these submissions. In this case domestic remedies are available. A remedy, in the McCrystal case, has already

been granted. Others, as discussed, are available under the Act of 1994.

146. Having considered the submissions as to the ECHR, I find no reason to hold the Act of 1994 incompatible. I would affirm the

judgment of the High Court on this issue.

147. The appellant also raised the Venice Code. The Venice Commission is an internationally recognised independent legal think tank.

This Court is not required to take judicial notice of the Venice Commission’s opinion. It does not have any direct effect. However, it is

an international body of renown, to which reference may be made in analysing an issue. Indeed, that has been done previously in

several judgments of the Court.

148. For the reasons set out in this judgment, I would dismiss the appeal of the appellant on both the petition and on the plenary

summons.

149. I would confirm, without alteration, the provisional referendum certificate, and I would cause a statement of the fact of such

confirmation to be endorsed on such certificate and the endorsed certificate to be returned forthwith to the referendum returning

officer. Consequently, when the endorsed provisional referendum certificate is received by the referendum returning officer forthwith

it will become final and be conclusive evidence of the result of the referendum.