Friday 26 December 2014

Dearbhail McDonald: All roads now lead to the doors of Supreme Court

Published 12/11/2012 | 17:00

JUST as they were queasy before the holding of the Children referendum, the Yes brigade has -- advisedly -- avoided striking too triumphant a tone in the wake of Saturday's poll success.

There is trepidation because of the acknowledgment that many risks lie ahead.

The first set of risks are political, the second ideological. Both lead to the doors of the Supreme Court.

One risk (almost inevitable) is that the outcome of the referendum -- with its low but not lowest ever turnout of 30pc -- will be challenged in the courts.

It is unlikely, on the Supreme Court's own record, that such a challenge would succeed, but the prospect of a challenge is a risk nonetheless.

In 1995 the Supreme Court ruled, in a case involving the Government's then IR£500,000 spend on the Divorce referendum -- to advocate a Yes vote -- that it was unconstitutional for the Government to use public money to promote a particular result in a referendum.

This means that if a government spends money on a referendum campaign, the information must be fair, equal and impartial.

The information campaign for the Children referendum was found to breach the so-called McKenna principles.

After the Divorce referendum (passed by just 9,000 votes), former Fianna Fail senator Des Hanafin challenged the validity of the poll, but he couldn't prove that the government's IR£500,000 splurge had a material effect on the hair's breath referendum.

Having voted Yes to the Children referendum, any challenge to the outcome is unlikely to succeed under the Hanafin principles unless a challenger proves that the now unconstitutional use of government money definitively influenced people to vote Yes.

Widespread and prominent publicity was afforded to No campaigners such as John Waters and Kathy Sinnott.

This, in my view, had a demonstrable impact on both turnout and margin, such sentiment given added force by the uncertainty generated by the Supreme Court's eleventh-hour ruling.

Given the prominence of the No side in public debate, I suspect it would be tough to argue that the government booklet blunder blindsided those who bothered to vote Yes or No.

In its preliminary ruling, the Supreme Court restated the supreme authority of the people and the people only to amend the Constitution -- even if we are ambivalent towards that privilege.

Were the Supreme Court to overturn Hanafin and, by extension, the voice of the people, we would be entering into a whole new era in terms of the separation of powers.

We have to wait until December 11 for the court's full reasons. But two preliminary issues raised by the five-judge court may unnerve the Government which -- for some reason or other -- did not avail of the opportunity to challenge the McKenna ruling, having been invited to do so by High Court President Mr Justice Nicholas Kearns.

The first is the Supreme Court's pertinent observation that Ireland's referendum-holding standards are out of kilter with the European Commission for Democracy through Law (Venice Commission).

The Supreme Court may, therefore, seek to reshape the way in which we hold referendums in the future -- and it may not be to the Government's satisfaction.

The second issue which might rattle nerves is the court's finding that there were extensive passages in the booklet/website combo that breached McKenna, including a "material misstatement" about the effect of the referendum.

I sat through much (but not all) of the Supreme Court hearing.

Maybe I was misreading things, but at times I thought there was a certain level of scepticism towards the likely effect of the referendum (or the need to hold one at all) by some members of the court.

It is the Supreme Court which will, after all, have the final say on the effect of the referendum in any future challenges.

The "new dawn" for children could lead to one of the most interesting and illuminating politico-legal showdowns in modern times.

Irish Independent

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