Chief Justice Denham
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,  IEHC 458, and another from a judgment of the High Court delivered on the 20th June, 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”.
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  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.
On the 8th November, 2012, in McCrystal v The Minister for Children and Youth Affairs  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.
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.
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.
A provisional referendum certificate dated 12th November, 2012, was published in Iris Oifigiúil on the 13th November, 2012.
The appellant commenced two proceedings in the High Court.
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.
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.
The application for leave in relation to the petition was heard over 14 days in April and May 2013.
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
In a judgment delivered on the 18th October, 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.
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.
On the 20th June, 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.
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.
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
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.
These appeals were heard together, by agreement, and this judgment relates to both appeals.
Referendum process commenced
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.
On the 16th October, 2012, the Referendum Commission launched a public information campaign.
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
On the 8th November, 2012, this Court delivered a ruling in McCrystal v The Minister for Children & Youth Affairs  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:-
McCrystal – Judgments
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.
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
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.
Section 42 states as follows:-
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.
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.
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), (4) provide-
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.
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.
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
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.
I adopt and apply the interpretation and approach to the legislation as stated by Barrington J. in Hanafin v Minister for the Environment  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.
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.
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.
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.
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.
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.
Thus, the primary submissions made on behalf of the appellant fail.
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.
I would dismiss these submissions also as to the construction of the relevant sections of the Act of 1994.
Standard of proof
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.
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
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.
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.
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.
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”
“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.
“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.
However, the word “affect” is also qualified by the word “materially”.
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”.
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.
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
Section 43 of the Act of 1994 provides the grounds on which the provisional referendum certificate may be questioned, stating that:-
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).
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.
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.
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.
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.
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”.
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”.
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.
Section 48 is consistent with this construction. I shall address this section later in the judgment.
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.
The evidence presented by the appellant was heard by the learned trial judge, considered and the application was dismissed.
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.
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.
There was ample evidence upon which the High Court could reach the conclusion it did in relation to the said individuals’ evidence.
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.
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.
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.
There was ample evidence upon which the learned trial judge could reach this conclusion.
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.
There was ample evidence upon which the High Court could reach this conclusion.
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.
The High Court concluded:-
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.
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.
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.
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.
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.
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.
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.
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.
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.
Section 48 provides for the re-taking of a referendum. It states:-
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.
The Act of 1994 explicitly enables a court to order that a referendum be taken again in a constituency.
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.
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.
Such an approach was discussed by Blayney J. in Hanafin v Minister for the Environment  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’.
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.
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
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.
The factual background for these proceedings was the same as the petition proceedings.
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.
A harmonious balance is required between the various constitutional principles and rights arising in this case.
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”.
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.
The day to day government of the State is by elected representatives of the People.
However, direct decision making by the People is retained in Article 46 and 47 of the Constitution.
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.
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.
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.
Hogan J. addressed the issue of popular sovereignty in the Constitution in Doherty v The Referendum Commission  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
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  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.
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.
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.
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:-
First, leave must be obtained, followed by a trial of the petition.
The petition application must be brought in the High Court.
It must be brought within seven days after the publication in Iris Oifigiúil of the certificate.
The process may only proceed if the High Court grants leave.
The High Court may only grant leave if the conditions set out in the legislation are met.
There are two conditions precedent:-
There must be prima facie evidence of a matter referred to in s. 43 of the Act of 1994; and
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.
Both conditions precedent must be met at the leave stage, and both are in issue at the trial stage of the petition.
The onus of proof remains on the petitioner at all times.
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.
This is the process, as set down in the legislation, for querying a provisional certificate of a referendum.
This process is not the same as a challenge to an action of the Government, or others, during a referendum campaign.
As O’Donnell J. stated in McCrystal v The Minister for Children and Youth Affairs  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)  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  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.
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.
In Hanafin v The Minister for the Environment  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.
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  1 I.R. 165 at p. 226 when he stated (of an application for extradition):-
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.
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
The standard to be applied by a court does not conflict with the secrecy of the ballot.
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 (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.
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.
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.
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.
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.
This test is similar to that determined in Bula Limited v Tara Mines Ltd (No. 6)  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.
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.
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.
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.
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.
“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.
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.
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.
However, the most important factor in this case, and perhaps in most such cases, is the voting figures in the referendum.
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.
There may be other relevant factors in any individual case.
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
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.
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.
I have considered the kernel issues raised on this appeal. However, there were some additional issues aired also.
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.
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.
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  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.
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 undertthat 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.
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  1 I.R. 210. I would affirm his decision and dismiss the appeal raised on this ground.
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.
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.
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.
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.
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.
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.
This case requires the Court to address a delicate and important intersection in the separation of powers under the Irish Constitution. The Court must consider the exercise of the executive power of government and the orders which a court can, and should, make when it is has been demonstrated that those powers have been exceeded, and the test the Court should apply. Another issue which arises is the true interpretation of legislation passed in the exercise of the legislative power, and the manner in which the Court should approach it, when it represents a judgment by the legislature on the manner in which alleged wrongs in relation to the exercise of important constitutional rights may be addressed in litigation. It follows from the foregoing that the case also necessarily and unavoidably involves consideration of the function, and limits, of the judicial power under the Constitution.
It is an important starting point therefore, to observe, in this case in particular, that the Constitution, by Article 6, states that these fundamental powers of government, executive, legislative and judicial, derive under God “from the people”. That Article continues, in terms particularly relevant to this case, that it is the people’s right 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”. As has been often observed, Article 6 describes government as consisting of three branches but does not itself establish or delineate a separation of powers. The subsequent provisions of the Constitution define and delimit the executive, legislative and judicial powers, and establish a system which looks, and for the most part functions, as a western liberal democracy with obvious similarities to the Westminster model. However the power of the citizen in that model to initiate change and control executive, legislative or judicial power, is extremely limited. But the functional similarity of the system established by the Constitution to that of other liberal democracies makes it more important that we recognise the distinctive emphatic assertion in Article 6, not just of a separation of powers but of popular sovereignty. Set in its historical context, Article 6 is a powerful republican statement that the powers to be exercised in the new polity cannot be traced to any royal concession or to a grant by a legislature considered omnipotent. The sole temporal source of power acknowledged by the Constitution is the people themselves. In that sense the separation of powers in the Irish Constitution while tripartite, has a fourth important, indeed overarching, component.
It is entirely consistent therefore with the Constitution’s assertion of popular sovereignty that it should delimit with some care the circumstances in which the people designate the rulers of the State by the exercise of their votes at election time (Article 16) and decide questions of national policy in particular in referenda when amendments are proposed to the Constitution (Articles 46 and 47). The importance of this case flows from the fact that it requires an analysis of both the legislative and constitutional norms governing the conduct of such referenda and the subsequent scrutiny of any result. That in turn necessitates, at least indirectly, a consideration of the law relating to such elections. Each case must be understood against the background of the vital role the people play in the constitutional structure.
The fact that it is the people who decide questions of national policy and do so in referenda, is emphasised by a consideration of the terms of Articles 46 and 47 of the Constitution. Those provisions regulate proposals to amend the Constitution. Under Article 46 such proposals are submitted by referendum “to the decision of the people in accordance with the law for the time being in force relating to the Referendum”. Article 47 for its part refers to “Every proposal.... submitted by Referendum to the decision of the people”. In a sense, the phrase in Article 46 just quoted encapsulates what is at issue in this case. The decision of the people is the ultimate source of power in this democracy and the Constitution makes it clear that a decision of the people on a matter consigned to them by the Constitution trumps any governmental decision, legislative enactment or judicial determination. But what is to happen if that decision has been achieved after a referendum campaign which has not been conducted in accordance with the law relating to the referendum including, in this case, the law to be found in the Constitution itself as interpreted by the judicial arm of government in performance of its own constitutional function? That question raises fundamental issues about the structure and functioning of a State established with an eloquent assertion of popular sovereignty even if it is a piquant irony that these questions should arise in the context of a referendum in which less than 35% of the people registered to vote, actually did so. For the first 60 years of its existence the issues latent in this case remained almost theoretical, being discussed if at all, in passing, in cases dealing with attempts, uniformly unsuccessful, to restrain the holding of referenda. However, this is the second occasion in 20 years in which the issue has arisen in a most concrete way.
While the particular facts of this case relate to the conduct of the referendum campaign in respect of the proposed amendment of the Constitution contained in the Thirty-first Amendment of the Constitution (Children) Bill which was held on the 10th of November 2012 (and which I will refer to hereafter as “the Children Referendum” since that was the manner in which the referendum was described by the Referendum Commission established under the Referendum Act 1998 (“the 1998 Act”)), it is necessary to sketch first a little of the legal and historical background, before turning to the details of this case. To an unusual degree, the arguments in this case can only be understood against the backdrop of what occurred in the context of the contentious campaign in respect of the Fifteenth Amendment of the Constitution Act 1995 providing for the dissolution of marriage in certain specified circumstances, adopted on the 17th of June 1996 and known as the “Divorce Referendum”, and the legal challenges that arose both during and after the campaign.
Prior to the Divorce Referendum there had of course been a series of applications for injunctions in respect of different referenda on different grounds but there had been no challenge to a referendum result. One argument which was being increasingly ventilated was that the expenditure by the government of public finances in support of a proposal to amend the Constitution was itself unconstitutional. That claim was initially rejected, first in the context of an interlocutory application in McKenna v An Taoiseach (No.1)  2 I.R. 1, and subsequently after a full hearing in the High Court. But in McKenna v An Taoiseach (No.2)  2 I.R. 10 (“McKenna”), the Supreme Court, by a majority of four to one, upheld the contention and found that the public funding by the government of a campaign in support of a Yes vote in the divorce referendum campaign was unconstitutional. This decision was delivered just one week before the referendum was held. Understandably the decision attracted considerable publicity. In the event 818,842 citizens voted in favour of the proposal and 809,728 against (a margin of less than 0.56%). The provisional referendum certificate was immediately challenged on the basis of the unconstitutionality identified in the McKenna judgment. Those proceedings were Hanafin v The Minister for Environment and the judgments are reported at  2 I.R. 321 (“Hanafin”).
The Hanafin proceedings were commenced under the then recently enacted Referendum Act of 1994 (“the 1994 Act”). That was a logical and probably prudent step, since s.42 of that Act provided that the validity of a provisional referendum certificate may only be questioned by petition brought in accordance with that Act. However, there were some difficulties in using the 1994 Act to address the type of claim which arose in the Hanafin case, and which recurred here. The 1994 Act was focused on essentially mechanical matters capable of affecting individual votes in particular constituencies. It referred to electoral offences, mistakes and irregularities “in the conduct of the referendum”. These matters were likely to be individual and local. Consistent with that approach, the Act contemplated that in the event that such matters were established, the Court could order the recounting of all or some of the votes in “a constituency” or the retaking of the referendum in “a constituency”. The 1994 Act was itself an updating of the provisions contained in the first Referendum Act of 1942 (“the 1942 Act”) and which had been amended once in 1992 by the provisions of s.68 of the Electoral Act 1992 (“the 1992 Act”). Indeed the Referendum Act of 1994 can be seen as a consequential measure bringing the law relating to referenda in to line with the electoral acts which had been most recently and comprehensively revised in the 1992 Act, rather than as a separate provision addressed to the particular issues arising in a referendum. In particular, the 1994 Act does not address the type of systemic nationwide problems which can arise in referenda, and in particular those which did arise in the Hanafin case and again here.
In Hanafin a Divisional Court of the High Court (Murphy, Lynch and Barr JJ.) heard considerable evidence on behalf of the petitioner but dismissed the case at the close of the petitioner’s case. The Court divided somewhat as to its reasoning. The majority (Murphy and Lynch JJ.) held that the words “conduct of the referendum” (s.43 of the 1994 Act) were only capable of applying to those aspects of the organisation and taking of the poll and other matters which were entrusted to the returning officer whose duty under the statute it was to “conduct” the referendum. The majority considered that the government’s action in funding a publicity campaign was not itself capable of coming within the meaning of the term “obstruction of or interference with or other hindrance to the conduct of the referendum” (s.43 of the 1994 Act), on an ordinary reading of the text and that no broader interpretation was necessitated since the wrongdoing identified in McKenna was capable of being addressed and remedied, without setting aside the result of a referendum, most obviously by a declaration of unconstitutionality such as that granted in McKenna, which had been immediately obeyed. Barr J. took a different view on this point holding that a broader interpretation had to be given to the words so that the government support of an advertising campaign on behalf of one side of a referendum must be held to be capable of being an interference, obstruction, hindrance or irregularity in the conduct of the referendum. In any event, Murphy and Lynch JJ. considered that even if the governmental conduct could be an interference with the conduct of the referendum within the meaning of the Act, the evidence was not such as to establish that the advertising campaign had “materially affected the result of the referendum”. Barr J. for his part was prepared to hold that the evidence did not establish on a prima facie basis that the will of the people had not been properly ascertained and freely expressed in accordance with the law. Barr J. also expressed the view (p. 375) that a referendum result could only be set aside if it was established beyond reasonable doubt that the result could not be seen as reflecting the will of the people and that the onus on a petitioner was very heavy. Murphy and Lynch JJ. did not consider it necessary to determine what standard of proof applied, but held that the petition had failed to satisfy even the lower of the two standards.
The petitioner appealed to the Supreme Court and succeeded on nearly all issues save the final and determinative one. The Court, having unanimously rejected the contention that an appeal did not lie, also held unanimously, that a broad interpretation should be applied to the Act and in particular the concept of “irregularity in the conduct of the referendum” (s.43) so that the government’s actions in supporting a Yes vote by the expenditure of public funds was capable of being such an irregularity or interference with the conduct of the referendum. The Court also rejected the contention that the petitioner was required to establish a case beyond a reasonable doubt. Furthermore, some members of the Court expressed disagreement with the approach which the Divisional Court had taken in disposing of the case at the close of the petitioner’s case. Nevertheless all members of the Court rejected the appeal on the grounds that that High Court was entitled to come to the conclusion which it had upon the evidence, that it had not been established that the result of the referendum had been materially affected by the wrongdoing. That this was, for some members of the Court at least, a close call, is illustrated by the judgment of O’Flaherty J. who concluded that the verdict of the people enjoyed a presumption of constitutionality which had not been displaced, a point he considered “as narrow as the verdict in the disputed referendum” (p. 438).
Subsequent to the decision in McKenna, the Oireachtas enacted the Referendum Act 1998 which permitted the establishment of a Referendum Commission charged with providing neutral information to the electorate on the content of any proposed amendment to the Constitution, a function successive Commissions have discharged during subsequent referenda. In 2012 however, in the context of the Fiscal Compact Referendum, it was apparently decided to take a different approach. The decision in McKenna had made it clear that the prohibition on governmental action related to the expenditure of public funds and resources in support of one side of the referendum. The government however was entitled to campaign, and indeed to provide information, although this was said in a context where there was no independent body discharging that function. The good sense of the establishment of an independent commission is obvious on a moment’s reflection. It is much easier to identify a category of neutral “information “ in theory, than it is to draw that line in practice, particularly when the person providing the information is the person proposing the amendment, and has concluded that it is necessary. Relying on the dictum that the provision of information by the government was not itself a breach of McKenna, and, it appears, the fact that a number of surveys seemed to show a desire on the part of the electorate for further information, it was, apparently, decided to mount a governmental information campaign in parallel to that of the Referendum Commission. Although that decision was criticised at the time, it was not the subject of any legal challenge during that campaign.
When in due course the government advanced a proposal to amend the Constitution, and in particular Articles 41 and 42, in the Children Referendum, it appears it was decided to conduct a further information campaign. This campaign was challenged by Mark McCrystal in proceedings commenced during the course of the campaign. Although the challenge was rejected in the High Court, this Court upheld the challenge and issued a short ruling explaining its decision on the 14th of November 2012, two days before the proposed referendum. The text of the ruling is set out at paragraph 25 of the High Court Judgment on the petition in this case and the full Supreme Court Judgments were delivered on the 11th of December 2012: Mark McCrystal v The Minister for Children and Youth Affairs  IESC 53 (“McCrystal”)).
It is necessary to observe at this point that the decision in McKenna has from time to time been criticised and dissatisfaction expressed with it. Some examples are recorded in Noel Whelan “Changing The Rules of the Political Game” in O’Callaghan Barniville and Ruane (eds.) Law and Government - A Tribute To Rory Brady (Dublin; Round Hall; 2014), and Ruane, “Reflections on Procedural Rights in Constitutional Referenda” (2012) 48 Irish Jurist 1, which also sets out and discusses the legal arguments. Indeed Whelan states that the decision to conduct the public information campaign in the context of the Fiscal Compact Treaty Referendum sought to test the boundaries of the McKenna decision. However, despite these matters, it is important to note that no attempt was made in McCrystal to argue that McKenna was wrongly decided, or to invite this Court to depart from it or qualify its conclusions. I do not mention these matters to invite such a challenge or necessarily cast doubt on that decision. It is important however to record and repeat the fact that McCrystal was an application, rather than a consideration and an endorsement, of McKenna.
The evidence in McCrystal was revisited in this case with the benefit of further discovery, and showed, in my view, a very clear breach of the McKenna principles. Nor was this something which only emerged after the fact, and in the course of litigation. One particularly telling piece of evidence was that during the course of the campaign, RTÉ had refused to carry certain advertisements as part of the information campaign because it considered that they could be a breach of the obligation on RTÉ of fairness and balance.
In the event, on polling day on the 14th of November 2012 some 33.5% of the electorate voted in the referendum and divided 615,731 to 445,863 (58%/42%) in favour of the proposal. The provisional referendum certificate was then challenged by petition initiated by Ms Joanna Jordan. She also commenced parallel plenary proceedings contending that if the Act was to be interpreted as imposing upon her the burden of demonstrating that the outcome of the referendum was altered by virtue of the unconstitutional information campaign, then she contended in the light of Hanafin, that such a burden was impossible to discharge, and that the Act if so interpreted would be unconstitutional.
Section 42 of the 1994 Act requires that a provisional referendum certificate may only be challenged by petition, and furthermore, that a petitioner must obtain the leave of the High Court to commence any such proceedings. Under section 42 in order to grant leave, the Court must be satisfied that there is prima facie evidence of grounds under s.43 (eg. an electoral offence, obstruction, interference, mistake etc) and furthermore that the matter is “such as to affect materially the result of the referendum as a whole” (s. 42(b)). In this case the parties agreed that the leave application should be heard at the same time as the substantive application to avoid the necessity of two lengthy hearings, and furthermore agreed that the evidence in the petition could be taken as the evidence in the constitutional challenge. This was probably a sensible course in this case since there is a high degree of overlap in the legal arguments on the questions of leave, the petition, and the constitutional arguments. An unconstitutionality had already been established in McCrystal, and Hanafin had decided that such unconstitutionality was capable of being an interference with the conduct of a referendum. However the leave stage created by the legislation is an important threshold step reflecting the fact that a challenge which seeks to reverse what is prima facie the will of the people expressed in a referendum, is a very significant step not least because the grant of leave prevents the amendment from taking effect. In most if not all challenges to the result of a referendum, it would in my view be important that a separate leave application be held, and rigorously assessed. It was however appropriate to hear the petition and plenary proceedings together since in my view the interpretation issue in particular could not properly be resolved without considering the constitutional arguments, since a major argument was that the Act should be construed in a particular way to comply with the Constitution. Hanafin itself is an illustration of this approach. It was held in that case that a broad interpretation was required to be given to the 1994 Act to accord with the Constitution to permit the issues created by the recognition in McKenna, of constitutional wrongdoing with the potential to affect the referendum campaign and process, to be addressed within the petition procedure.
The appropriate sequence therefore would seem to be to consider what the statute appears to mean applying normal canons of interpretation; to consider then if such an interpretation would render the Act unconstitutional; and if so, to consider if a broader or different interpretation is possible which would be consistent with the Constitution; if a constitutional interpretation is possible it must be adopted, but if no other interpretation is possible the Act must be declared unconstitutional. It is certainly easier to do all this in one reasoning process rather than to artificially separate the question of interpretation from the question of constitutional validity. Indeed, as the Court observed at the outset of this case, the question could be also approached from the other direction: what does the Constitution require (or permit) when there has been an unlawful (and indeed unconstitutional) interference with a referendum? Is the 1994 Act consistent with that conclusion? In either case does the Constitution require that the provisional referendum result be invalidated and a new poll directed?
The Evidence in the High Court
The High Court heard extensive evidence, which was carefully tested by searching and detailed cross-examination. I gratefully adopt the detailed description of the evidence contained in the judgment of my colleague Mr Justice MacMenamin. Among the useful points to emerge was agreement that the Children Referendum could be considered a “low salience issue” (in contrast for example to the Divorce Referendum). This is an issue which is obscure to the voters and about which they know little in advance. As a result it was argued that members of the public would be more dependent on, and likely to be influenced by, official communications, particularly it might be said, those presenting themselves as neutral and informative. The evidence as to the degree of preparation for the referendum and the expenditure involved, and the extent to which the wording of the amendment and its presentation was the subject of research and public surveys in advance, was also instructive. It is useful to remember that the McKenna constraints have been considered only to apply to the period between the passage of the Bill to amend the Constitution and the poll date, which in recent times has been quite a short period. In this case the Bill to amend the Constitution passed both Houses of the Oireachtas on the 3rd of October 2012, and on the 8th of October, polling day was set for the 10th of November. The evidence of the government’s spending on its information campaign (€1.1million) is also significant. The details are set out at paragraph 21 of the High Court Judgment, but the bulk of these funds were spent on polling, advertising and design and delivery of the booklet, all of which occurred in a short time period. This is a substantial amount of (public) money in its own right, but the potential significance of the spend in a short period of time in the context of a low salience referendum campaign is illustrated by the fact that after the monies allocated to the Referendum Commission, this was by far the largest single spend on the campaign and comfortably exceeded the combined spend of all the political parties and voluntary groups campaigning in support of the proposed amendment. Another useful point of comparison is that the two political parties comprising the government spent a total of €200,000 on their own behalf on the referendum campaign but the government itself spent €1.1 million on its information campaign. This was all the more significant in the context of the Children Referendum since the No side had virtually no resources with which to conduct any advertising or publicity campaigns. Whatever view is taken of the McKenna decision, it cannot be gainsaid that this is a very significant expenditure both in its own terms and in the context of this referendum campaign.
The High Court Judgment on the Petition
The judgment of the High Court ( IEHC 458) first considered the legal test to be applied. Addressing itself to Hanafin, it concluded that the onus was on the petitioner on the balance of probabilities to establish a material effect on the result of the referendum as a whole. In particular, the High Court concluded at paragraph 60 that having regard to the importance of the values identified in Hanafin:
.... anything less than evidence which, on the balance of probability, demonstrates that the unconstitutional behaviour in this case affected the outcome of the Referendum and had such an impact on voters as to produce a majority in favour of the proposal, means that the petitioner must fail in her petition.
This test it will be noted, involves the proposition that in order to succeed, the petitioner had to show that the referendum would have been defeated were it not for the unconstitutional conduct identified in McCrystal.
The first phase of the case involved evidence from individual voters. Four voters were called, and the evidence was that one contended that he had changed his vote from a No to a Yes having read the government booklet, and one individual who was going to vote No abstained. There was other evidence from campaigners. The trial judge’s conclusion from this evidence (paragraph 73) was that while it was useful and honest it was also speculative and subjective. He considered that it was 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.
The Court also considered evidence from political scientists, which attempted to quantify the impact of the governmental campaign. Much of this evidence was given on behalf of the petitioner by Dr Michael Bruter, a reader in political science specialising in electoral psychology at the London School of Economics and Political Science. He expressed the view that in the context of a low salience referendum, the perceived nature of a source was a major determinant of how influential the information would be. Evidence was also given by Professor Paul Whiteley, Professor of Governance at the University of Essex (recounted from para. 94 of the High Court Judgment). He considered that information offered from the department of state having expertise in the area would be particularly influential in the context of a low salience campaign. He acknowledged that he could not give a precise assessment of the extent of the influence the information had on the decision of voters because “the data was simply not available”. Notwithstanding however the absence of a “detailed study capable of giving a precise estimate of the extent of the influence of the general campaign” he considered he could form a judgment of a rough kind about what the effects were. While not possible to determine the “percentage affect” of the booklet he was satisfied to conclude that the information “may very well have been quite influential”.
This evidence was contested on behalf of the respondents by Professor Michael Marsh, Professor of Comparative Political Behaviour at Trinity College, Dublin. Professor Marsh’s principal area of expertise is electoral behaviour including how voters make their choices in elections and referenda. A central part of his evidence, as set out at paragraph 91 of the High Court judgment was that it was:
.... not possible to assess definitively what factors determined the outcome of the children referendum or to determine whether any individual factors such as the material published by the department had an effect on the level of the ‘yes’ or ‘no’ vote.
He was emphatic that “it was not possible to come to a clear view that the unconstitutional expenditure of money by the government resulted in victory for the yes side that would not otherwise have occurred”. His views were summarised at paragraph 92:
He was strongly of the view that without a properly designed study, implemented at the time of the conduct of the campaign itself, it was not possible to assess what factors had a particular effect on the outcome.
Indeed, even assuming a study could have been carried out at the time of the conduct of the campaign, Professor Marsh acknowledged that there would still have been problems with the approach and that “[a] causal sequence can be very difficult to establish” (para. 93 of the High Court Judgment). To an extent Professors Marsh's evidence was directed towards the negative and somewhat unsatisfactory objective of showing that it was not possible to prove or disprove decisive effect.
The judge set out his conclusions on the evidence at this point in the case. He observed that Professor Whiteley had accepted that all the experts were agreed that “the supporting data was not available to enable a study to be carried out to determine exactly the extent of the influence of the government’s publication” (para. 95 of the High Court Judgment). Accordingly, the High Court Judge expressed its view at paragraph 96 that the evidence of the political scientists 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)”. He considered that Dr Bruter’s evidence was the subject of reasonable criticism by Professor Marsh and that both Professor Marsh and Professor Whiteley had 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”.
After the evidence was given, but before the case was determined, it emerged that the Referendum Commission had carried out its own post referendum survey in a sensible and praiseworthy attempt to measure the impact and effectiveness of its own information campaign and the relative impact of various methods used for gaining the attention of voters. Some of the questions asked in that survey made reference to the governmental information campaign and in particular the government booklet. The raw data from the survey was still available, and accordingly, Dr Bruter engaged in what the trial judge described, accurately in my view, as the interesting and imaginative attempt to derive from that data evidence of the impact of the governmental campaign. This led to the point where he contended that there was evidence of a statistically significant association between receipt of the government booklet (or perhaps more accurately recall of receipt of the booklet) and voting Yes in the referendum. He sought to quantify this connection at 9.3%.
The figure of 9.3% appears to be derived from the raw data contained in the Behaviour and Attitudes survey conducted on behalf of the Referendum Commission which recorded that of those who received the Referendum Commission Guide, 62% said they voted Yes and 38% No: 64% of those who received the government booklet voted Yes and 36% No, and 65% of those who received both guides voted Yes and 35% No. Furthermore, 64% of those who received neither guide voted Yes and 36% voted No. It is clear therefore that the survey recorded a higher percentage of Yes votes among those who had obtained the government guide (64%), than among the population generally (it will be recalled that 58% of voters supported the amendment). As a result Dr Bruter said initially “[o]verall, receiving the booklet made people over 9.3% more likely to vote yes”. Put more precisely, he agreed this meant that he considered that there was a “statistically significant relationship between saying you received the Government Booklet and saying that you voted yes in the referendum” (paras. 100 – 102 of the High Court Judgment).
There are, it should be said, of number of valid issues which may be taken with this exercise and the extrapolation from the survey. Since for example, 64% of respondents identified themselves as Yes voters, then either the survey was not representative of the population, or there was an element of over reporting which is not uncommon in opinion polls. Furthermore the correlation, if it existed, was perhaps at best between a recollection of receipt of the booklet and of voting Yes, rather than between the contents of the booklet and the individual vote. However 9.3% was in some ways, and to borrow a phrase, a “magic number” since it allowed the petitioner to argue that it showed, even to the most demanding standard, that the result of the referendum had indeed been altered by the government information campaign which had been found unconstitutional in McCrystal. I understood this to be because on one view of these figures, if accepted, it could be said that this difference was sufficient to carry the referendum (I am not convinced that any of the steps in this calculation are watertight even as a matter of mathematics, but for reasons which will be addressed later it is not necessary to resolve that matter here). A 9.3% difference was on any view, a figure which, if accepted, provided some concrete assessment of the impact of the information campaign and allowed the petitioner to argue that the impact was indeed decisive.
As the trial judge found, the arguments in this matter were detailed and technical and of rather narrow focus. There was further sophisticated evidence given as to the methodology employed, which for example discussed whether weighted data should have been used, and as to whether the results were reliable. Again, the evidence of the respective experts was subjected on both sides to well prepared and searching cross-examination. In the event, the trial judge accepted the evidence of Professor Marsh and the criticisms he advanced, and accordingly did not accept that the petitioner’s evidence had demonstrated a material effect on the outcome in the sense of demonstrating that without a government information campaign the amendment would have been rejected. Although strenuous efforts were made to revive these controversies in this Court, this was a conclusion of fact, given after considering expert evidence advanced in the High Court, and was a conclusion to which in my view, the trial judge was amply entitled to come. It must accordingly be taken as forming the factual substratum upon which the legal issues in this appeal are to be debated. This conclusion was however fatal to the petition, since it meant that on the test which the Court set itself, it was satisfied that the acknowledged unconstitutionality established in McCrystal had not materially affected the outcome of the referendum as a whole.
The Constitutional Argument on the Interpretation Issue
The next step was to consider if the test applied was consistent with the Constitution. In this respect the trial judge again accepted the respondents’ arguments, which placed some reliance on an unreported judgment of the Supreme Court (Henchy J: Budd and Griffin JJ. concurring) which had rejected an appeal pursuant to the Electoral Act 1923 (“the 1923 Act”) in respect of a challenge to the election result in East Mayo in the 1973 election: Dillon-Leetch v Calleary (unreported; Supreme Court; 31st July 1974) (“Dillon-Leetch”). In that case there had been an allegation that the secrecy of the ballot had been breached – at least in theory – because of a failure to maintain supervision of the ballot boxes at break times. Henchy J. cited Woodward v Sarsons and Sadler (1874-75) L.R. 10 C.P. 733 (“Woodward v Sarsons”) at p. 750,
It is said that section 13 [of the Ballot act 1872] though it is in a negative form, assumes as an affirmative proposition that a non-compliance with the rules, or any mistake in the use of the form would render an election invalid, unless it appeared that the election was conducted in accordance with the principles laid down in the body of the act and that such non-compliance or mistake did not affect the result of the election. If this proposition is closely examined, it will be found to be equivalent to this, that the non observance of the rules or form must be so great as to amount to a conducting of the election a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or, in other words, the result of the election. It therefore is, as has been said, an enactment ex abundante cautela declaring that to be the law applicable to elections under the Ballot Act which would have been the law to be applied if this section had not existed.
Henchy J. continued, “this interpretation does not appear to have been dissented from in any subsequent case. The most recent approval of it is to be found in Morgan v Simpson  1 All E.R. 241”. Henchy J. considered therefore that what he described as an “electorally ineffective” breach of a principle (albeit in that case the constitutional principle of secrecy) should not, without more, lead to the invalidation of the result. This he considered was a conclusion based on the provisions of s.39 of the 1923 Act which, in terms essentially identical to section 13 of the Ballot Act 1872 (“the 1872 Act”), provided a saver for elections in which, while there may have been a breach of a statutory provision, were conducted in accordance with the principles of the Act, and where such non-compliance did not affect the result of the elections.
Importantly for present purposes, Henchy J. also considered that such an outcome was consistent with and required by the Constitution itself:
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 overlooking a breach of the constitutionally recognised principle of the secrecy of the ballot in elections for Dáil Eireann: see Article 16 s.1 ss.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 constitutionally right of the rest of the citizens forming the electorate in the constituency to elect their representatives in Dáil Eireann: see Article 16, s.1 ss.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 on Article 16 s.1 ss.4 against so doing) but not so as to have effected 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:
Although the dispute between the political scientists must be taken to have been resolved by the determination of the trial judge, the general evidence was relevant in a number of different ways to the legal arguments of both sides. Thus the petitioner argued first, as already discussed, that the evidence passed the test set by Hanafin however high and demanding that might be. Second, she argued that if the evidence did not meet the standards set by the High Court Judge that that was a misinterpretation of Hanafin so as to create a virtual impossibility of proof for a petitioner. Third, she argued that if indeed the test applied by the High Court followed correctly from Hanafin, then Hanafin was wrong in setting such a test which required proof to a point which it was argued, was acknowledged to be virtually or actually impossible. Finally, if the test applied followed from the 1994 Act, then that Act was unconstitutional in requiring an impossible standard. The respondents for their part sought to escape the pincer movement implicit in the petitioner’s arguments by arguing at one and the same time that the evidence so extensively debated before the High Court did not meet the required standard, but nevertheless the fact that evidence of that nature could be adduced showed that it was in principle possible to provide evidence of material effect on the result of a referendum, and accordingly, there was no true impossibility of proof. The failure of proof, it was argued, was specific to this case, but not inevitable. The petitioner’s arguments, it was argued, confused difficulty with impossibility. There was nothing wrong with a high and demanding standard being set before the vote of the people should be set aside. Indeed, that was consistent with the decision in Hanafin and moreover required by the Constitution.
The High Court, in its judgment on the petition delivered on the 18th of October 2013 ( IEHC 458), held that there was indeed a prima facie case pursuant to s.42 of the 1994 Act and accordingly granted leave to the plaintiff to present the petition, but dismissed the petition on the merits. On the 20th of June 2014, having heard further argument on the constitutional issue, the trial judge delivered a further comprehensive judgment dismissing that claim ( IEHC 327). It is no disrespect to the meticulous judgments delivered by the trial judge to observe that in some respects the legal arguments were narrowed and simplified in that case by the fact that the High Court was bound by the decision in Hanafin. In this Court however, the appellant, as she was entitled to do, has argued that Hanafin was wrongly decided and should not be followed, and the arguments have ranged further.
On this appeal the petitioner/appellant makes a number of interrelated arguments that have in turn raised additional issues of some complexity. It is argued that on a true construction of the 1994 Act, the petitioner was not required to demonstrate material effect on the result of the referendum as a whole. As this argument was developed it was acknowledged that it had not been made, at least in the same terms, in the High Court. Accordingly, consideration of this argument also involves consideration of the circumstances in which the Court can entertain an argument not made in the High Court. The petitioner also argues that either the test of material effect on the result of the outcome should not be interpreted to mean a different result would have ensued, or that on proof of an unconstitutional interference with a referendum the onus should shift to the State respondent (either as a matter of law or because it was essentially a matter within the power of the State to prove) to demonstrate that there had been no material effect on the outcome. It is also argued that the trial should have been conducted as an inquiry with no onus of proof on the petitioner.
All of these arguments are based to some extent on the proposition that in the light of the secrecy of the ballot, it is effectively impossible, as a matter of reality, to prove one way or another whether there had been an impact on votes to the degree where it could be demonstrated that the votes in the referendum would have been different or conversely, that in the absence of the government’s unconstitutionality the result would have been the same. Thus, whoever bore the burden of proof of material effect or its absence, would inevitably lose. These arguments have echoes of arguments made in Hanafin and the decision in that case. The petitioner accordingly also argues that the trial judge misunderstood or misapplied Hanafin, or that if he had correctly applied the principles in Hanafin, then the decision was wrong and should not be followed. To that extent the argument also therefore requires the Court to address the circumstances in which it could depart from an earlier decision of the Supreme Court in relation to constitutional issues.
The Interpretation Issue
Counsel for the petitioner put forward an intricate argument as to the true interpretation of the 1994 Act in the light of the common law of elections and the statutory developments since the famous Ballot Act of 1872 which introduced the secret ballot. Counsel frankly admitted that the argument had not been put in this way in the High Court, but I am satisfied that it is proper for this Court to address it. It is closely related to issues of interpretation which were argued in the High Court. It is a legal argument as to the interpretation of the Act and is not dependent on evidence, and has no implications for the manner in which the High Court hearing proceeded. Further, the constitutional challenge requires that the Act be properly interpreted before consideration be given to the question of whether or not the Act as so interpreted is consistent with the Constitution. It would be unsatisfactory, to say the least, if the Act was found to be unconstitutional on the basis of an erroneous interpretation, and equally undesirable if the petitioner’s claim on a matter of great importance not only to her, but to the State generally, were to be held to fail and a potentially unconstitutional amendment permitted to stand in the basic law of the State because a legal argument of some force, was not permitted to be made. This accordingly, is one of those occasions for the application of the observation attributed to Judge Learned Hand that inspiration is not so common place a virtue that it is to be rejected merely because it comes late. In accordance with the approach set out in Lough Swilly Shellfish Growers Cooperative Society Ltd v Bradley & Ivers  IESC 16, I would be prepared to permit this argument to be made and considered.
It is necessary to state in some detail the petitioner’s argument in this regard, not only to understand and address it, but also because an understanding of the electoral law, its history and application is useful in resolving the larger constitutional questions in this case since, the right to vote in parliamentary elections enjoys the same constitutional status as the right to vote in a referendum. In the language of Article 6, it is the choice by the people of the rulers of the State under Article 6 just as voting in a referendum can be seen as the people deciding in ultimate appeal all issues of national policy. Furthermore, as already observed, the provisions of the Referendum Act of 1994 are largely patterned on the Electoral Acts which themselves must be understood against the background of the pre-existing electoral law. There is thus a close parallel between both the statutory provisions involved and the constitutional values engaged in each case.
The starting point for counsel’s argument was an attempt to undermine the authority of the decision of the Supreme Court in Dillon-Leetch. As already observed the judgment in that case cited the dictum from Woodward v Sarsons and further observed that the dictum did not appear to have been dissented from and had itself been recently approved in the decision of the High Court in Morgan v Simpson  1 All E.R. 241 (“Morgan v Simpson”). Dillon-Leetch addressed the provisions of s.9 of the Electoral Act 1923 which was in the following terms:
No election shall be declared invalid by reason of a non compliance with the rules .... if it appears to the tribunal having cognisance of the question that the election was conducted in accordance with the principles laid down in the body of its act, and that such non compliance .... did not affect the result of the election.
As Henchy J. observed, this saving provision can be traced to s.13 of the Ballot Act 1872. It is also worthwhile at this point to observe that that section is in essentially similar terms to the provisions contained in s.48(2) of the Referendum Act 1994 (itself drawn, it appears, from s.9 of the Electoral Act 1992). The formulation of this saving clause has caused difficulties of interpretation since it is in negative terms (“no election shall be declared invalid” in the 1923 Act (s. 39) and “the Court shall not order a referendum to be taken again” in the 1994 Act (s. 48(2)) and does not, except by implication, contain any positive statement as to the circumstances in which election should be declared invalid. The fact that the provision also contains two conditions, conduct in accordance with the principles of the Act and no affect on the result, makes the interpretation more difficult, particularly when it is sought to transpose the negative statement into a positive.
As it happens, this difficulty of interpretation manifested itself in the Court of Appeal decision in Morgan v Simpson ( 3 W.L.R. 517). The Court of Appeal of England and Wales emphatically overturned the decision of the High Court which had been referred to, and to an extent relied upon, in Dillon-Leetch. In doing so the Court went further, expressly disapproved of the dictum of Lord Coleridge C.J. in Woodward v Sarsons also referred to in Dillon-Leetch, and set out at paragraph 176 above, Lord Justice Lawton referred to the dictum as not making sense (page 171) and Lord Denning M.R. agreed (page 163).
At first sight this development (of which the Supreme Court was unaware in Dillon-Leetch), might appear to significantly undermine the authority of that judgment, but on closer analysis it is apparent that this is not so. The error at first instance in Morgan v Simpson was to read the dictum of Lord Coleridge C.J. in Woodward v Sarsons as meaning that an election could only be invalidated where both conditions had been satisfied, i.e. there was a material effect on the outcome and that the election had not been conducted in accordance with the principles set out in the Act. The result of that interpretation was that the court of first instance was prepared to uphold an election where irregularities complained of had affected the outcome in the sense that when corrected, a different candidate would have won. The Court nevertheless refused to set aside the election because it had not also been shown that the election was not conducted in accordance with the general principles of the Act. That issue did not arise in Dillon-Leetch which clearly came within the terms of s.39: the election had been conducted in accordance with the principles of the legislation and the irregularity had not had a material effect on the outcome of that. Accordingly, Henchy J. did not rely on the extract from Woodward v Sarsons in the sense in which it was applied at first instance in Morgan v Simpson and which the Court of Appeal found to be erroneous. More importantly the significance of Dillon-Leetch for this case is related to the constitutional rather than the statutory argument. Thus, whether the interpretation of s.39 was correct or not as a matter of statutory interpretation was beside the point. The burden of the dictum in Dillon-Leetch was that a requirement of proof of material effect on the outcome before an election could be declared void, was consistent with, and arguably required by, the Constitution. That conclusion was not, and could not have been affected by the dictum of the Court of Appeal of England and Wales in Morgan v Simpson.
However, the decision of the Court of Appeal of England and Wales in Morgan v Simpson is also important for a more general argument which counsel sought to advance. The judgment of Lord Denning M.R. contains a very useful and lucid account of the history of the Ballot Act 1872 and in particular s.13. He explains that prior to 1868 any election disputes were determined by parliament which had the power to determine the result, and if necessary to direct a fresh election. The approach taken by parliament was discretionary, and less formal than that which might be taken by a court. Indeed, at that time, election at common law was open and not by secret ballot, and in the words of Lord Denning M.R (p. 162):
.... was disgraced by abuses of every kind, especially at parliamentary elections. Bribery, corruption, treating, personation, were rampant. These were not investigated by the courts of law. They were the subject of petition to parliament itself. Often members were unseated and elections declared invalid. If you should wish to know what happened, you will find it in Power, Rodwell & Dew Reports of Controverted Elections (1848-1853) and in Charles Dickens’ account of the election at Eatanswill [in the Pickwick Papers, Chapter 13].
In 1868 election disputes were for the first time to be determined by the courts under the Parliamentary Elections Act of that year. Then in 1872 the Ballot Act was enacted which revolutionised the system of voting at elections and provided for voting by secret ballot and prescribed rules and set out forms of ballot papers. The degree to which elections were now prescribed by detailed statutory rules meant that there was a risk that elections could be too easily set aside for breach of those rules. It was therefore thought necessary to have a saver in the form of s.13 which has been reproduced in subsequent legislation ever since. To this extent it appears the statutory law followed the practice in parliament prior to 1868 in that parliament exercised a degree of discretion on a petition. To that extent it was perhaps correct to say that the section was enacted ex abundante cautela. However the true principle was set out by Lord Denning M.R. at page 164:
Collating all these cases together, I suggest that the law can be stated in these propositions:
Counsel for the appellant here pointed out that there were many statements to the same effect in earlier decisions. Perhaps one of the most notable for our purposes is the decision in In Re Pembroke Election Petition  2 I.R. 433. There the law was stated with admirable clarity by Palles C.B. (p.448):
Of the many classes of irregularity in the count of an election two are material in consideration of the question here:-
First – Those cases in which, by reason of the irregularity, the conduct of the election is contrary to the principles laid down in the body of the Ballot Act. In such a case, to use the words of Lord Coleridge, in Woodward v Sarsons (1), the election is ‘not really conducted under the subsisting election laws,’ of which the Ballot Act is one of the principal and most important.
Consequently, according to the common law affecting elections, as laid down in that case, as well as by what I regard as the clear construction of the Ballot Act, such an election ought to be declared void.
The second class of irregularity is where, though the conduct of the election has been in accordance with the principles laid down in the body of the Ballot Act, and of the other existing election statutes, yet there has been a breach of the rules or forms of the schedule to the Ballot Act, or there has been a breach of some of the subsidiary provisions of those statutes; but where there has not been a corrupt or illegal practice by the candidate.
Speaking generally, an irregularity of this second class will not, per se, avoid the election. Avoidance in such a case depends not upon the statute, but upon the common law affecting elections; and avoidance or non-avoidance depends upon whether such irregularity had, or might have, affected the result. This, too, is the effect of the decision in Woodward v Sarsons (1).
It was argued that on this law, and indeed under the provisions of the Referendum Act 1942 had they been applicable, the irregularity here would fall within the first category, that is to say that the referendum was carried out if not contrary to the principles laid down in the Ballot Act (and now the Referendum Act) then certainly contrary to fundamental constitutional principles. Thus it could be said that it was “not really conducted under the subsisting election laws” and should be avoided whether or not a material effect on the outcome could be shown. It was not therefore an irregularity which was capable of benefiting from the saver first set out in s.13 of the Ballot Act and contained in 40(2) of the Referendum Act 1942, and substantially re-enacted in s.48(2) of the 1994 Act, and the question of effect on the outcome simply did not arise.
Of course the law has not remained in the state it was in 1908 or 1942 and the petitioner’s argument had to address the fact that the present law in the shape of the Referendum Act 1994 appears to impose an obligation on a petitioner to demonstrate in every case a material effect on the result of the referendum as a whole. Section 43 provides that a petition may question a provisional referendum certificate “on the grounds that the result of the referendum as a whole was affected materially by” the specified matters. The argument was made that the Act must only impose such a requirement, or should be interpreted as to only impose such a requirement, in respect of the leave stage where under s.42(3) of the 1994 Act the High Court was required to be satisfied on the ex parte application of the petitioner that there was prima facie evidence of the matter referred to in s.43 by subparagraph 42(3)(b) that the said matter was “such as to affect materially the result of the referendum as a whole”. Counsel pointed out that the first amendment to the Referendum Act 1942 was the insertion of the leave stage which was introduced by s.168 of the Electoral Act 1992 which introduced a new s.34A into the Referendum Act 1942, and which is in substantially the same terms as s.42(3) of the 1994 Act. On this argument, whilst s.43 does state that a referendum petition may question a referendum certificate on the grounds that the result of the referendum as a whole was affected materially by any of the matters set out in s.43 it does not explicitly impose a requirement that a material effect be actually demonstrated. While on the face of s.43 this might be a rather strained argument, it gains considerable support from the fact that as counsel showed, and the respondents were forced to accept, there is a tension, indeed inconsistency, between s.43(1) and s.48(2).
Section 48(2) operates as a saver to preclude the Court from ordering a repeat of a referendum where the referendum has been conducted in accordance with the principles contained in the Act, and when there is no material effect on the outcome. But if s.43 requires a petitioner to positively demonstrate material effect in order to be in a position to succeed in a petition, at which point s.48(2) potentially comes into play, there could be no circumstance in which the saver could ever apply in fact, since it requires the demonstration that the act or error did not affect the result of the referendum as a whole, as the opposite has necessarily been proven. Put in reverse, if indeed it could be demonstrated that there was no effect on the outcome of the referendum as a whole, as required to satisfy s.48, then the petition should fail at the first hurdle under s.43(1), and there would again be no circumstance in which s.48(2) could ever take effect. To interpret s.43(1) as requiring a demonstration of material effect to succeed in a referendum petition would therefore render s.48(2) effectively redundant. Since the law leans against redundancy, it was argued, the only logical interpretation which could reconcile s.48(2) with s.42 and s.43, was an interpretation which limited the onus on the petitioner to demonstrate material effect at the leave stage where undoubtedly it was unambiguously required by s.42(3)(b). That had however been satisfied in this case, and accordingly on this interpretation, the petitioner was entitled to succeed since the respondent could not on this analysis benefit from s.48(2). That saver could not apply to the error or wrongdoing in this case since it could not be demonstrated that the referendum had been conducted in accordance with the principles of the Act if those principles were to be understood as including the constitutional principles outlined in McKenna. In any event, the onus under s.48(2) was on the respondent to show no material effect.
Furthermore, and for good measure, counsel pointed out that if s.43(1) was to be read as imposing a general requirement of a demonstration of material effect, and was to have the consequential effect of rendering s.48(2) redundant, it was, to say the least, curious that in 1998, when it came to enact the Referendum Act creating the Referendum Commission, the Oireachtas, by s.12 of the Act, inserted an identical saver to that contained in s.48(2) and this time, by an amendment to s.43 itself. Section 12 of the 1998 Act reads as follows:
The objective of the new subsection seems to be to extend the same protection to actions of the newly created Referendum Commission as already exists for other officials such as returning officers. If however, s.43(1) is to be understood as imposing a requirement of material effect, then it appears to follow that the Oireachtas, in 1998, went to the trouble of inserting in s.43 itself a new s.43(3) which was redundant, or at least ineffective.
I quite see the logic of this argument, even if it requires a degree of historical excavation to appreciate its full force. On the other hand, if the argument is accepted, then it seems to run counter to both the words and logic of ss.42 and 43. In particular, the apparent plain words of s.43(1) would in effect be removed, and a diametrically contrary meaning assigned to s.43(1) to that which the words suggest. Either interpretation therefore involves considerable surgery in relation to the Act. There is no doubt that the argument advanced by the petitioner demonstrates that the drafting of the 1994 and 1998 Acts has resulted in a clumsy, confusing, incoherent and self-contradictory text which shows insufficient awareness of the operation of the Act and the background history of electoral law, but the Act is the law, and must be interpreted as best we can. As a matter of statutory interpretation alone, I have reached the conclusion that I am in no doubt that the 1994 Act should properly be interpreted as requiring that in order to succeed, a petitioner must establish not just an irregularity or defect or other matter set out in s.43, but also that the referendum as a whole was affected materially thereby. This must be established on a prima facie basis to obtain leave and on the balance of probabilities at the full hearing of the petition.
My reasons for coming to this conclusion are that the words of s.43(1) are clear and taken on their own, unambiguous. Furthermore, a requirement of material effect is consistent with the structure of the Act and the proceedings envisaged by it. It is entirely logical that if the question of material effect is to be addressed at the leave stage, it must also be a requirement at the substantive hearings. There would be little or no sense in requiring an applicant to establish on a prima facie basis that the irregularity was such as to have material effect, but not require material effect in fact to be proven at the substantive hearing. Indeed, there would be manifest objections in logic and fair procedures if that was the course required by the Act. Moreover, it seems clear that every development in the law relating to elections and referenda has been to tighten the procedure, and raise the threshold for proceedings seeking to set aside the result of an election or referendum. Section 13 of the Ballot Act is itself an early example. The introduction of the leave requirement itself in 1992 is another. One further instance is the difference between s.40(2) of the 1942 Act and s.48(2) of the 1994 Act. Under the 1942 Act the saver only operated if it could be demonstrate that the irregularity or other matter complained of did not have an effect on the outcome of the referendum in the individual constituency, whereas by 1994 that had been altered to a requirement that the poll would not be retaken in any constituency if it was shown that the irregularity did not affect the outcome of the referendum as a whole and presumably therefore, even if the irregularity affected the outcome in the particular constituency. It was entirely consistent with this development of the law to understand that the additional words introduced into s.43 that the result of a referendum “as a whole was affected materially by” were deliberately included in 1994 to impose a requirement that the petitioner demonstrate such an effect.
By contrast the interpretation contended for by the petitioner emerges from the Act only after considerable close analysis and against a historical background of quite complex and recondite election law. There is no doubt that once a provision such as s.48(2) is related to s.13 of the Ballot Act 1872 and indeed the pre-existing law, it becomes clear that such a provision is only a saver, and furthermore, that it has no practical effect if s.43(1) creates a substantive requirement of material effect whatever the irregularity or breach of which complaint is made. But the very process of understanding the point gives some insight as to how such an incongruous result could arise and does not support the conclusion that the Act must be read to elide any requirement of showing material effect at the substantive hearing. It seems likely that the background to s.48(2) was not sufficiently understood during the drafting process of the 1994 Act. Indeed in fairness to the drafter it should be said that the point now made emerged only after the provisions of the 1994 Act relating to referenda petitions had been exhaustively scrutinised by both the High Court and the Supreme Court in Hanafin, and by the High Court again in the extensive hearings in this case. If s.48(2) had been understood with the clarity which has now emerged after a painstaking analysis, it would of course have been more elegant to remove it since it appears to be completely superseded by s.43(1). However inelegance in drafting is a much lesser sin than inconsistency, contradiction and a failure to achieve the intention of the Oireachtas which would follow from the petitioner’s argument.
Furthermore, there is in my view a significant difference between interpreting the Act to require material effect and thus rendering s.48(2) ineffective and interpreting the Act as containing no requirement that the petitioner show material effect at the hearing of the petition, and leaving that matter to the limited saver under s.48(2). It is apparent that on a superficial reading, s.48(2) was designed to achieve essentially the same object as the other changes to the codes made since 1942, that is, to impose a more demanding standard for the invalidation of referendum results, and avoid invalidation for technical or electorally ineffective irregularities. The same objective underlies the introduction into s.43 of a requirement of proof of material effect on the outcome of a referendum. The provisions are therefore at least superficially consistent and it is perhaps understandable therefore that s.48(2) might be left in place. Indeed even if the potential impact of s.43(1) was adverted to during the drafting process it would not be surprising if s.48(2) was left in place on an assumption that it did no harm to, and did not appear to contradict or thwart, the intention of the Oireachtas. Section 43(1) on this view does not contradict s.48(2) or alter its meaning. If the saver in s.48(2) came to be applied or interpreted it would be given the same interpretation as its statutory predecessors. If s.43(1) imposes a requirement of a demonstration of material effect in every case, then it supersedes s.48(2) and may mean that it is impossible to conceive of circumstances in which it would take effect as a matter of fact. On the other hand, the interpretation advanced by the petitioner would not merely render the words of s.43(1) ineffective: it would instead require that they be removed, and not merely as surplusage, but so that the section would have a meaning exactly opposite to what it appeared to say. If the petitioner is correct, then a provisional certificate could be questioned, and set aside, on the grounds set out in s.43(1) even if there was no material effect on the result of the referendum as a whole. This is a much more dramatic interference with the text of the Act than the probable redundancy of s.48(2) and moreover would be plainly contrary to the intent of the Act, as I understand it. I do not consider that it is necessary to rely on s.5 of the Interpretation Act 2005 in this regard but if it is necessary to consider that section, it would plainly support the conclusion to which I have come.
The unhappy drafting of the Act does however, have the consequence that it cannot properly be said that the interpretation to which I would come as a matter of statutory interpretation, is the only possible interpretation. Accordingly, it is necessary to address the effect of the double construction rule and consider if the Constitution requires that the interpretation advanced by the petitioner while less likely, should nevertheless be accepted because the more likely interpretation of the words to require a showing of material effect, would be unconstitutional. This involves considering the question set out at the outset of this judgment. Why should any showing of material effect be necessary once it is shown that the referendum has not been conducted in accordance with the rules – and here rules which were derived from and required by the Constitution?
I do not think it adds much to the analysis of this question whether or not the interference with the referendum here can be characterised as a breach of the Constitution as interpreted in McKenna. That is because any interference with the conduct of a referendum is a serious interference with the constitutional right, the right of each citizen to vote, and even more importantly, with a solemn constitutional process. Of course if the breach was intentional and advertent, it is possible, indeed likely, that different considerations would apply. It might then be relevant that the conduct involved more than one breach of the Constitution. That however, does not arise here, and the question must be addressed at the level of principle, as to why once an interference with a vital and fundament constitutional process can be shown, and which can be demonstrated to be neither technical nor de minimis, the result should not be set aside and referendum re-run without having to go further into the question as to whether that interference had any decisive impact on the outcome of the referendum, an inquiry which on any view is time consuming, difficult and contestable, and indeed on the petitioner’s case, virtually if not entirely, impossible. After all, the Palles C.B. judgment in the In Re Pembroke Election Petition case, and the judgment of Lord Denning M.R. in Morgan v Simpson shows that as a matter of history, once a serious breach of electoral law is shown, an election result is invalidated without requiring any showing that it had an impact on the outcome of the election. There are many examples in administrative law where once a breach of the procedures or law governing a decision making process is shown, the decision is set aside because it has not been reached in accordance with the law, and even if it might be said with considerable force that the same substantive decision would be reached by an untainted procedure. Why then, when there is a serious non-technical interference with perhaps the most important constitutional process, should it be necessary to go further and show some material effect on the result? This is a central question in this case not least because if it were established that a requirement of material effect was inconsistent with the Constitution, then it would follow that the less plausible, but possible, interpretation of the Act advanced by the petitioner, would have to be adopted.
For these purposes it is, I think, preferable to address first the general question of whether it is permissible, once a serious breach has been shown, to also require that a challenger show that the breach was, in the helpful phrase of Henchy J., electorally effective. I will leave until later the question of the precise content of any such test, if permissible. While the two questions are interrelated, it facilitates analysis to deal with the more abstract question first.
If the only question for the Court was whether the proposed amendment had been submitted to the people “in accordance with the law” for the time being in force as required by Article 46(2) then the answer would be clear. That indeed was the question properly posed in McCrystal, and addressed in that case. Only one constitutional value is engaged in such a case. However as Henchy J. pointed out in Dillon-Leetch, admittedly obiter but in a passage which is in my view as perceptive as it is persuasive, that is not the issue, or at least the sole issue, here. When the question is the setting aside of a vote, whether at an election or referendum, then the issue involves a balance between two different constitutional values. A referendum did take place and the people participated. They voted for or against, or did not participate, but in each case, their decision was the exercise of their sovereign constitutional entitlement. In many cases the individuals may have been completely unaware of or disregarded the government information campaign. If conscious of it at all, they may have acted in defiance of it or because of annoyance with it, but in each case a decision was made which it is for a citizen of Ireland alone to make. That has a very significant constitutional weight which must be put in the balance. A decision of the people, in the terms of Articles 46 and 47 was given. To set aside a referendum result simply because of a breach of the law, but particularly the regulations relating to provision of information, would be to demean the significance of the individual voter and the value of their individual vote, whether that vote was exercised or not.
The people of Ireland who participate in an election campaign or a referendum, whether they vote or not, are not mere ciphers whose free will in relation to a vote can be lightly disregarded. Their participation, or lack of it, in a referendum campaign is not to be treated as no more than leaves to be blown one way or another by the breeze generated by the skill of the pollster or advertiser or the designer of the information booklet who for example in this case decided, no doubt after much thought, to describe the referendum as “the Children’s Referendum” rather than as the Referendum Commission did, “the Children Referendum”. While that was one component of what was found sufficient to constitute a breach of the McKenna principles, the Constitution, in my view, permits, and indeed requires, that something more be shown before the outcome of the referendum is set aside on that basis. Even if one were to assume for a moment that some voters were decisively influenced to vote for the referendum by the contents of the government’s information campaign, and that this was not counterbalanced by those who decided to vote against or abstain because of the finding of unconstitutionality, it still follows that every other voter was not so influenced, and their votes have a very significant constitutional value. Those votes constitute the decision of the people. As Henchy J. put it:
the courts will not allow an electorally ineffective breach of .... 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 Dáil Eireann .... see Article 16.1.2 of the Constitution. Otherwise it 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 (and breached the prohibition in Article 16.1.4 against so doing) but not so as to have an effect on the result of the election.
This approach is, I consider, consistent with and required by the modern mass participation democracy established by the Constitution. While I recognise the benefits of recourse to the authorities, and have found them useful here, there is a limit to what can be learnt from the older cases. It is only necessary to consider the difference in the electorate in the Pembroke Urban District Council election which was the subject of the petition considered by the Courts of King’s Bench in 1908, and the electorate which was entitled to vote in the Children Referendum. In 1908 universal suffrage had not been achieved. Until 1898 only freemen and the propertied classes could vote in local elections and even after the significant expansion of the franchise in 1898, the electorate was still very limited. Furthermore, women were not permitted to vote until 1918 and then only those over 30 years of age. In many ways the elections prior to the introduction of the secret ballot, and which were the subject of much of the early and fascinating electoral law, were more akin to votes in private clubs, among a very limited franchise, and which could easily be re-run. Modern elections are by contrast exercises in mass democracy, expensive and onerous to run, and carrying with them an inevitable risk of individual error but also having a significant internal self-righting mechanism achieved by the sheer numbers participating, or eligible to participate, and the collective intelligence generated thereby.
By the same token the re-running of a referendum in modern times is not something to be lightly undertaken, and not a simple, or necessarily effective, remedy. The re-running of an election or a referendum is not like a laboratory experiment where it is possible to alter a single variable (in this case the government information campaign), maintain all other values constant, and re-run the experiment without additional cost or doubt. Instead, a re-run election is normally undesirable since it gives rise to an inevitable risk of uncertainties and doubts. If the result is the same it was largely a pointless exercise. If the result is different, then some voters will inevitably have reasons to feel disenfranchised. Some of the broader issues are well discussed in an article, “Remedying Election Wrongs” (2007) 44(2) Harvard Journal on Legislation 265 by Professor Steven F. Huefner and quoted in the decision of the Supreme Court of Canada in Opitz v Wrzesnewskyj  3 S.C.R. 76, at page 100 :
.... a new election can never be run on a clean slate, but will always be colored by the perceived outcome of the election it superseded. New elections may also be an inconvenience for the voters, and almost certainly will mean that a different set of voters, with different information, will be deciding the election. Moreover, there can be no guarantee that the new election will itself be free from additional problems, including fraud. In the long term, rerunning elections might lead to disillusionment or apathy, even if in the short term they excite interest in the particular contest. Frequent new elections also would undercut democratic stability by calling into question the security and efficiency of the voting mechanics.
Some of those concerns can be illustrated in the context of the present referendum. If the referendum is to be re-run, the past cannot be erased. The actors in the referendum including the voters cannot be put back into the situation in which they were prior to the 12th of November 2012. To take but one example, the monies expended by the various campaigns and the effect of the expenditure in the 2012 campaign, is long since dissipated. A number of voluntary bodies participated significantly in this referendum, which is normally a healthy thing in a democracy, and expended significant funds which will not be available for a second referendum. If the outcome of a new referendum were to reject the proposed amendment, in a very different campaign, perhaps by a narrow margin, then such bodies might legitimately feel that they had been deprived of the benefit of their participation in the campaign and a successful outcome. They and others would have no reason to have faith in the outcome of the second referendum and the stability and certainty which an election process is designed to provide, at least as to outcome, would not exist.
Modern mass participation democracy is designed above all to achieve a result and one that can be trusted by the public whether any individual member participated or not. The sheer weight of numbers involves a significant quality of self-balancing and self-correction so that individual incidents become less important in the overall mix. Thus the vote, or abstention, of a foolish and uninformed person has the same weight as that of the Nobel prize winner. The vote of the person who has studied and who has agonised on the issues has the same value and impact as that of the person who votes casually or on a whim. The person who fully intends to vote but is delayed has the same impact on the outcome as the person who pays no attention and never intended to vote, or the person who defiantly abstains on the grounds of principled objection to the issue or a candidate. Some people may vote on a plain misunderstanding of the issue. In some cases, as indeed has occurred, people may be confused by the formulation and led to vote in a manner contrary to their intention.
There will always be the possibility of error in the conduct of elections involving millions of individuals. Statements will be made which are exaggerated and even false. True statements may be misunderstood. Furthermore, if we think closely enough about it, the system includes the possibility for error and mistakes, at least at the margins. Whether it is the hanging chads of the Florida vote in 2000 or the uncounted or miscounted bundles in our own system, or indeed the system for the allocation of surpluses in the proportional representation system, all modern systems of election contain elements of randomness which mean that every election process falls far short of the perfect sterile laboratory standard, and any re-run is inevitably likely to be imperfect perhaps in different ways. Confidence in the system relies on relative weight of numbers if not curing, then overwhelming most imperfections and rendering them irrelevant. Quite apart from the importance in democratic theory of individual participation in elections and referenda, the system of modern mass participation democracy recognises the phenomenon of collective intelligence – the idea recognised many years ago that a collective judgement, if sufficient numbers are involved, will reduce and eventually remove the impact of individual extreme opinions. The immune system of democracy has therefore at least some resistance to individual error. A reluctance to re-run a vote is also based on the relative difficulty of mobilising the population at large for a sufficient time to engage with the issues in an election or referendum in the expectation that all the individual votes for all the myriad individual reasons will produce a collective result. This is not a process that can be reproduced easily.
It is also the case that while any individual election result may be decisive and even dramatic, it is in the life of the State, always to some extent, provisional. Another election is always on the way - where the result may be reversed. While this is perhaps less true for referenda, there are nevertheless a number of examples of the same proposal being put to the people sometimes with the same result (proportional representation) and sometimes with different results (divorce, the Nice and Lisbon referenda). Thus in a functioning democracy if there is sufficient dissatisfaction with the outcome of any referendum, then there remains the possibility of a further poll. Democracy works best when a result is accepted which lets people proceed with the victors enjoying their success and leaving the losers to lick their wounds and plot their revenge or indeed acquiesce in the result and move on. It is also far from ideal that the outcome of a referendum should remain in suspended animation while the parties, and the courts, investigate at length the complexities and nuances of voting patterns and issues. It is for example extremely unsatisfactory that an amendment apparently adopted by a significant majority of the people should be ineffective for a lengthy period. That is what has occurred here and there is no constitutional remedy for the people in general who have been deprived for that period of the amendment for which they voted, or those individuals who during that period would wish to have relied on the amendment, which in the light of the decision of the High Court and this Court, was adopted by the people. It would be particularly undesirable if for example the outcome of a general election were left in abeyance for even a fraction of that time. The challenge to the outcome of a referendum or election is not costless. On the contrary it imposes significant costs on society which cannot be recouped. All these considerations lead me to the same result arrived at so lucidly and concisely by Henchy J. more than 40 years ago: the Constitution not only permits but requires that before a poll, whether in an election or referendum, be set aside, that it be demonstrated not just that there has been a breach of the law, even the constitutional law, but also that the breach, to adopt Henchy J.’s words, has been electorally effective, that is that it has had an impact on the result of the poll. That much, at least, is in my view required by the value the Constitution places on the decision of the people in a referendum. But to prevent any challenge to a result, or adopt a test which renders a challenge effectively impossible would not be consistent with the obligation to uphold the law designed to permit the true ascertainment of the peoples’ decision on a matter of national policy, and the constitutional values which underlie it.
The central difficulty in this case is that the Court is required to identify a test which sets a balance between two values which have significant constitutional weight, and which may on occasion conflict. Very significant weight must be given to the importance of upholding the law, and in particular the constitutional law, regulating the holding of elections and referenda. Those laws exist in part to prevent a potentially beneficial collective intelligence becoming a damaging group think. They also exist to promote trust in the process and confidence in the result. On the other hand, as has just been discussed, there is a significant constitutional weight to be given to the decision of the people. The Court cannot allow one to decisively outweigh the other. While some might assert that courts should not properly engage in what can be seen as a political question, withdrawal from decsionmaking is not an option which is consistent with the balance set by the Irish Constitution, which after all, goes to some lengths to regulate by its own terms the electoral process. Even those theories of judicial review which lay emphasis on the separation of powers and the importance of recognising both the limits of the judicial power and the consignment by the Constitution of certain matters to the other branches, nevertheless stress the importance of positive enforcement of constitutional guarantees in respect of voting since that is a fundamental underpinning for the legitimacy of decisions of the representative branches. The Court must find the point of constitutional equilibrium. The democratic process should not be too readily stopped and ballot results upset by courts, but seriously flawed processes must not be beyond effective challenge by citizens. For present purposes it is enough to observe that the Constitution permits and indeed requires that more be established than a breach of the rules regulating a referendum or election and that a threshold of the electoral effectiveness must be passed before a referendum result is invalidated. It will however be necessary to address at a later stage, what precisely is required to pass that threshold. However before doing so it is necessary to address the argument advanced by the petitioner that it is effectively impossible to demonstrate material effect on the outcome of the referendum and accordingly that the test must either be adjusted or struck down as unconstitutional.
The petitioner claims that if the Act requires some demonstration of material effect, that she cannot or should not be required to demonstrate that the outcome of the referendum would have been different, that is, that without the government’s information campaign the result rather than Yes by 58% to 42%, would have been No. That she says is an impossible task and in so arguing she relies on a number of dicta from the decision in Hanafin and in the High Court judgment in this case . Setting such a test she argues is a form of catch 22 which forces citizens who have been the innocent victims of a constitutional wrong, to pursue an essentially futile though costly claim which cannot ever result in the successful overturning of a referendum. On this argument, it is to add insult to injury to accept the argument of the respondents (who the petitioner says it must be remembered gave rise to these proceedings by wrongly expending public funds on an unbalanced information campaign) that in order to assert a claim a petitioner must have commissioned a detailed, rigorous, comprehensive and therefore expensive public opinion survey, and moreover one conducted during the course of the referendum, and before any unconstitutionality is identified. Even then, it is argued that this case clearly demonstrates that the results of any such survey would be open to contest. The petitioner claims therefore that it should be enough to show an impact on the vote which is more than minimal. Alternatively it is argued the onus should shift to the respondent and in this case the wrongdoers, to show on the balance of probabilities that there has been no material effect on the result. It was further argued that because proof of material effect was something within the power of the State which could certainly more easily have conducted surveys either contemporaneously or in the aftermath of the referendum, the onus should shift for this reason. Finally, a different argument was that the Court should not have applied any onus of proof but should rather have conducted the petition as a form of inquiry.
These arguments are different ways of confronting the problem of proof in this case (and the question of what is to be proved and to what standard) which necessarily involves a consideration of the decision in Hanafin. While the petitioner understandably presents her arguments in the first place as merely distinguishing Hanafin or advancing arguments not addressed in Hanafin, counsel for the respondent has shown convincingly in my view, that the issue of difficulty of proof was central to Hanafin and that therefore, to accept the petitioner’s argument, at least in its strongest form, involves overruling that decision departing from it or qualifying it. It is thus necessary to consider the test the Court should apply when invited to depart from a prior decision of this Court involving the interpretation of the Constitution.
Counsel for the respondent placed reliance on the well known decision in Mogul of Ireland Ltd v Tipperary (North Riding) County Council  I.R. 260 (“Mogul”). It stated (p. 272):
A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at least, be clearly of opinion that the earlier decision was erroneous.
Even if the later Court is clearly of the opinion that the decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies ....
This is a valuable statement that has guided this Court since it was first articulated in 1976. Furthermore, as the word “normally” indicates in the formulation of the test, this is not and could not be a bright line rule. There is an inevitable area of flexibility which cannot be defined with any greater precision. Just as judges can in good conscience disagree as to whether a previous decision was erroneous, they can disagree as to whether any error was clear or not. Nevertheless the decision is an important guide to the posture which this Court should adopt when invited to depart from a previous decision.
However the decision in Mogul occurred in the context of a question of statutory interpretation. It is obvious that the same considerations may not apply, or at least not apply with the same force, in the area of constitutional interpretation. There must be less scope for application of the principle of communis error facit jus in the area of constitutional decision-making. The risks inherent in erroneous interpretation of the Constitution are necessarily greater. Furthermore, even without error it may be necessary to depart from a previous interpretation. As Walsh J. observed in McGee v The Attorney General  1 I.R. 284: “[i]t is but natural from time to time that prevailing ideas .... may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time” (p.319). It is conceivable that viewed in the light of experience or in novel conditions which did not apply at the time of the original decision, it may become apparent that the decision should no longer represent the interpretation of the Constitution. Thus it is, I think, clear that the principle in Mogul must apply with some modification in the constitutional context. I agree therefore that the observations of Keane J. (with whom Denham J. agreed) in Society for the Protection of Unborn Children (Ireland) Limited v Grogan (No.5)  4 I.R. 343 (pp. 388-389):
It is to be observed that Mogul of Ireland v Tipperary (N.R.) C.C. was a case concerning the interpretation of a particular statutory code affecting a limited and defined section of the community (those whose property had been maliciously injured and the local authorities obliged to compensate them), a construction which had been adopted and applied for many decades and had been unanimously upheld by the former Supreme Court.
The contrast with the present case is plain. In this case, the court is concerned with the constitutional rights, not merely of every woman of child bearing age and of the embryos and foetuses which they are carrying, but of the even wider range of citizens who will be affected ....
I do not think, however, that the absence of dissent in the earlier decision can be regarded as foreclosing any further judicial determination of the issue at the level of this Court, particularly when constitutional rights and their protection are in issue. So to hold would be seriously to encroach on the role of this Court as the guardian of last resort of the Constitution and might oblige it to perpetuate an erroneous interpretation of the Constitution.
However the doctrine of precedent is itself part of the administration of justice contemplated and required by the Constitution, and provides qualities of certainty and predictability which are important and indeed vital parts of that system. These are qualities of enduring importance, perhaps more so where there is a multi-tiered superior courts system. No one for example, considers that courts at a lower tier in the judicial hierarchy should be entitled to depart from decisions of the High Court or Court of Appeal or this Court, merely because it involves a constitutional matter. Furthermore, the Constitution is an exercise in delicate checks and balances, and part of that balance is historical as well as institutional. In the modern phrase, a constitution is to some extent an ongoing conversation across the generations. While Bunreacht na hÉireann is emphatically the peoples’ Constitution, it must be remembered that the youngest living person who can be said to have adopted the Constitution in 1937 will be 100 years old next year. When we speak therefore of the people adopting and giving to themselves this Constitution, that necessarily comprehends also the acceptance of the Constitution by subsequent generations, and the accretions to it by the process of constitutional interpretation.
The force and value of the Constitution comes in part from its age, and the respect which is paid to our predecessors who attempted to express an enduring statement of those core truths that they held to be fundamental and applicable in whatever circumstances. Of course the Constitution speaks in the present tense and would be of little value if it was not capable of addressing important contemporary issues. But as Murray J. observed in Sinnott v The Minister for Education  2 I.R. 545 (p. 680):
Agreeing as I do with the view that the Constitution is a living document which falls to be interpreted in accordance with contemporary circumstances including prevailing ideas and mores, this does not mean, and I do not think it has ever been so suggested, that it can be divorced from its historical context. Indeed, by definition that which is contemporary is determined by reference to its historical context.
Part of the value of the Constitution is that it is at one and the same time both old and ageless, and it gets some of its strength from the fact that it has been tried and tested through different generations in different circumstances. The process of constitutional interpretation is part of that historical continuum and an important exercise in the intergenerational conversation and solidarity. The power to declare an act unconstitutional, or to promulgate a binding interpretation of the Constitution, is one which is imposed upon the judiciary by the Constitution, and that duty must be performed without fear or favour. But it is a weighty power, and it is an appropriate recognition of the significance and reach of the power, that judges approach the task with the caution and humility of which the doctrine of precedent is one part. The very act of deciding that a previous considered decision of the Supreme Court is wrong is its own demonstration that courts can be wrong. That should give a court pause for thought, which is what respect for prior precedent does. I fully accept therefore that this Court must be free to adopt a new interpretation of the Constitution particularly in the light of experience or novel developments, and should certainly not engage in the process derided by Jonathan Swift of repetitions of the worst decisions, or of reasoning which is now clearly wrong. When in conscience this Court comes to a conclusion that a prior decision is wrong and cannot stand, it is its clear duty to say so, for the reasons outlined by Keane J, and the fact that there may often be conscientious and vigorous disagreement cannot deter it. But the fact that a previous Supreme Court, whether post or prior to 1961, or indeed 1937, has given thoughtful consideration to an issue, is a factor of substance not to be lightly disregarded, and it is necessary to carefully analyse the reasoning of a prior decision, and any supporting argument, before departing from it.
In considering prior precedent, the fact that individual judgments were delivered in a case such as Hanafin can lead to misunderstanding. It is not a question of picking dicta from one or more judgments and presenting those as a binding authority. The weight of a case as a precedent will depend on those areas, necessarily narrower, in which it can be said that the Court or at least a majority of it, was agreed on an issue which was central to the decision in the case. It is also important that any decision must itself be read against the background of the facts of the case. One of the most significant features in Hanafin was that the evidence for the petitioner in the High Court signally failed to advance the petitioner’s case. Furthermore, the petitioner was forced to call one witness to prove certain opinion poll results, who would otherwise have been a primary witness for the respondent. His evidence was inevitably exploited by the respondent on cross-examination and it is plain from the judgments in the Divisional Court that the evidence of that witness, Mr Jones of MRBI, was found to be very persuasive and damaging to the petitioner’s case. Thus, by the close of the petitioner’s case, the Court had heard a significant aspect of the respondent’s case. The result was that the petitioner’s evidence at the close of his case could properly be characterised by counsel for the respondent in the Supreme Court as being in a “state of disarray”. This is important background against which both the legal arguments and some of the comments in the judgment should be understood.
I have no doubt that counsel for the respondent is correct in his analysis that it was argued in the Supreme Court in Hanafin that the petitioner should not bear an onus of proof; that it was enough to demonstrate that there was an impact on the referendum which was not trivial; that any impact on the referendum should not have to be decisive but should merely be significant in the conduct of the referendum; and that once interference with the conduct of the referendum was shown, the onus should shift to the respondent to disprove or to demonstrate that there had been no material effect on the outcome of the referendum. It is also clear that the Supreme Court collectively and unanimously held that the petitioner should bear an onus of proof and, notwithstanding some confusion of language, that the standard of proof should be the balance of probabilities. The Court also held that the onus moreover was on the petitioner to show impact on the outcome and result of the referendum and not merely an impact more generally. Quite apart from the detailed analysis of the report of counsel’s argument and the judgments in the Supreme Court, these arguments all necessarily follow from the posture of the case in the Supreme Court, and the state of the evidence, and in any event the limited capacity of this Court to review evidential findings. Furthermore, I am satisfied that these conclusions are correct, and for reasons which have already been addressed, consistent not merely with the Act, but also with the requirements of the Constitution.
While it is true that some of the judges, most notably O’Flaherty J., expressed a preference for hearing proceedings as an inquiry, that was by no means a finding of the Court, or even the individual judge, because the Court unanimously dismissed the appeal notwithstanding the fact that the case had not proceeded as an inquiry but had been disposed of in a fashion in which the rules of adversarial procedure had been rigorously applied. It is, I think, notable that the Referendum Acts contemplate some capacity in the Court to secure evidence even if not produced by the parties themselves but it does not appear to me that much in practical terms is achieved by describing the process as inquiry rather than proceedings. An onus must be discharged by the proposition that the referendum was materially affected by the interference with its conduct and inevitably, parties to the petition will adopt rival positions which they will advance and contest. That indeed is how most proceedings in these courts are dealt with and it is part of the administration of justice contemplated by the Constitution. Notwithstanding its costs and limitations, the adversarial process is an effective and trusted method of finding facts and testing and scrutinising propositions of law. There is no reason to think that the Constitution prohibits the utilisation of such a process in the case of a referendum petition, subject to the qualification already mentioned.
Nor do I think there can be any substance in the petitioner’s contention that the date of the referendum ought to have been postponed. It is accepted that that would have required the passing of special, and emergency legislation by the Oireachtas. That is a matter which the Constitution consigns to the legislative branch, which in our system means that the executive branch is also involved. The Constitution does not allow the courts to compel the passage of legislation which is a matter within the discretion of the legislature. Though the mechanism of the Referendum Act, as interpreted, provides a remedy in the case of wrongdoing which has material effect on the result of the referendum since it permits the referendum to be re-run. If such were to occur, and were to be based on a finding that was in some sense time sensitive, so that the perceived impact on the outcome of the referendum might have lessened if there had been a postponement, then of course in hindsight in such a case it might have been wiser for the legislative and executive branches to pass legislation to defer the holding of the referendum. But the fact that a referendum was held on a particular day and not postponed cannot affect the decision whether on that occasion the result was materially affected by the alleged wrongdoing. It either was, or was not. Furthermore, since the passage of legislation proposing an amendment to the Constitution, the fixing of a referendum date and a referendum campaign are all part of an important constitutional process, any interference with a date set by the legislative branch could itself be open to challenge. Accordingly, I would not depart from the decision in Hanafin that there is an onus on a petitioner to show a material effect on the outcome of the referendum as a whole.
I have however more difficulty with the petitioner’s contention that the test in Hanafin of showing a material effect on the result of the referendum in the sense of demonstrating that it must have been different, was applied in the High Court in this case to set for the petitioner an impossible standard. Indeed that term was used in Hanafin where a number of judges referred to the fact that having regard to the constitutional obligation of the secrecy of the ballot, it was impossible to say that the outcome must have been different if the government breach had not occurred. The petitioner also points, with some merit, to the facts of the present case as illustrating the point that a citizen who wishes to challenge the outcome of a referendum where there has been proven to be an interference with the conduct of the referendum, should not be required to prove or seek to prove the impact of such interference only by the production of sophisticated and elaborate surveys of voting intention which will in any event become the subject of academic contest about methodology and the conclusions to be drawn therefrom. Such a process will generate abstruse academic debate leading almost inevitably to a conclusion not that the outcome was or was not been affected, but rather that it was impossible to say. The petitioner argues with some force that this would be to create a constitutional catch 22 standard and cannot be required by the Constitution, particularly in cases where the starting point of this case, and indeed Hanafin, was that an interference with the constitutional process of the referendum had been proven.
It is true that some of the judges in Hanafin used the language of impossibility and also referred to the difficulty posed by the secrecy of the ballot. Thus, in the High Court Barr J. said at page 378: “.... in my view it is impossible to divine with any reasonable degree of accuracy what effect the advertising itself might have had on influencing some voters to vote ‘Yes’ rather than ‘No’.” He went on to say that ”In my view it is impossible to asses with any confidence the conflicting effects of such factors on the ultimate decisions made by the voters as to whether they would support or reject the proposed amendment of the Constitution”.
I think counsel for the respondent is correct to say that this is properly understood as referring to the evidence in the case itself rather than a general state of impossibility. However in the Supreme Court Hamilton C.J. said (p. 430):
Because of the secrecy of the ballot, it is not possible to ascertain, by direct evidence, the factors which influence the people in casting their votes, what their motives were in casting their votes and the reasons why they cast their votes in a particular way.
This is an accurate statement of the limits of direct evidence in this or any other case, but does not go so far as to suggest that it is impossible by other evidence to ascertain on the balance of probabilities the influence of certain factors on the referendum. Denham J. (as she then was) made no reference to this issue. Blayney J. said at page 444:
.... to prove that the result of the referendum as a whole has been materially affected becomes extremely difficult because, as was submitted by the Attorney General, the secrecy of the vote prevents any evidence being obtained as to how people voted or as to why they voted in the way they did.
This statement refers to difficulty and not impossibility, and in any event possibly goes too far in suggesting that the secrecy of the ballot prevented any evidence being obtained as to how people voted or as to why they voted in the way they did. The secrecy of the ballot does not preclude evidence being volunteered by individual voters as to how and why they voted, and opinion polls of the voting intentions and exit polls as to voting reasons would be admissible, as in my view would expert evidence as to the conduct of a campaign.
The judgments of O’Flaherty and Barrington JJ. go perhaps the furthest in this regard. At page 457 Barrington J. said:
It seems to me to be impossible to assess on any scientific basis what effect the Supreme Court ruling, and the reaction of the Government and the various parties to it had upon public opinion.
This is clearly a reference to the facts of the particular case. But at page 458 he said:
We know how they voted. We don’t know why they voted the way they did. We are not competent to interrogate them as to do so would amount to breaking the secrecy of the ballot. Primary evidence being thus excluded it seems to me that we cannot accept secondary evidence from experts who seek to second guess why the people voted in the way they did.
This is a rather puzzling concluding observation, since no other judge considered that the issue was one of the admissibility of evidence (or indeed its acceptability). But I do not think it can or should be read as asserting that it is impossible in all cases to prove material effect on the outcome of the referendum. Indeed, at page 457 in the introduction of this section of his judgment, Barrington J. observed that the question of the result of the election being materially affected by the unconstitutional conduct of the government was essentially a matter for the Divisional Court which heard the evidence of the petitioner and the witnesses, and the Supreme Court could not interfere with that assessment. That appears to have been the basis upon which he rested his judgment.
Finally, the petitioner laid stress on two passages in the judgment of O’Flaherty J. At page 437 he said:
Can it be said the ‘Yes’ side were not influenced to the extent of that small percentage at least by the Government’s advertising campaign? Of course, that cannot be said: it is something incapable of proof.
At page 436:
.... how is the verdict of the people to be assessed in the circumstances that there was no way to prove by the evidence adduced, or to rebut by any evidence that was held in reserve, that the advertising campaign did or did not materially affect the result of the referendum?
Again, while this is framed by reference to the evidence in the particular case, I accept it is capable of suggesting a more general proposition.
When the judgments of the Supreme Court are read together, I think however that they must be understood in the context of the particular evidence in that case. I do not think that the judgments of the Supreme Court can fairly be read for the self-contradictory proposition that while the Act is required to be read broadly to ensure that a referendum can be retaken in the event of a constitutional wrong affecting the referendum as a whole, and in particular a wrong which was capable of affecting materially the outcome of the referendum, such an order could never be made because such material effect is impossible to prove. Nevertheless the language used in some of the judgments does give rise to problems of interpretation.
This difficulty of interpretation is compounded by an uncertainty in the decision in Hanafin as to what precisely, a petitioner is required to prove. There is no doubt that the petitioner must establish a material effect on the outcome of the referendum and not just an impact on it: while not stated explicitly, that necessarily follows from the rejection of the argument made at page 402 that “affect” should mean “substantially bear upon the result” rather than “altering” it. But the judgments of the Supreme Court in Hanafin do not expressly address the question of what must be proved to establish material effect and in particular whether a petitioner must prove as a matter of probability that the result must have been different without the wrongful interference, or merely that there is a real, or reasonable, likelihood that the outcome might have been different or a real risk to that was so.
Counsel for the respondent first argued boldly that a petitioner was required to show that the outcome of the referendum must have been different. Subsequently he refined that submission by suggesting that it should be read against the standard of proof and thus meant that a petitioner must show on the balance of probabilities that the outcome must have been different. This he said amounted to showing that the outcome would probably have been different, and was he argued, not substantially different to any test of likelihood or risk of a different result. I do not think that this is so. In my view, while all this is a matter of degree and nuance and the application of different language may lead to the same result in concrete circumstances, nevertheless there is a difference between proving (on the balance of probabilities) that a result must or would have been different, and proving (again on the balance of probabilities) that there is a real likelihood or real risk that it is so. There is a difference between what must be proved and the standard by which it is proved.
I do not think that the judgments in Hanafin can be understood as addressing this issue and resolving it definitively. It is of some significance that Denham J. in her judgment referred to the test then applicable in extradition cases in Finucane v McMahon  1 I.R. 165 at p. 226 where it had been held that courts should not extradite a person if there is “a real danger” that a citizen’s constitutional rights would be breached. It is plain from the reference to this test in Hanafin, and the fact that there is no dissent or debate upon the test in other judgments, that the specific issue identified here was not debated or discussed in any detail in the argument or judgments in that case, still less decided. This is not surprising because it is clear that all the judges considered that the evidence of the petitioner failed to reach any threshold and did not reach the stage where it could be said to raise a real or substantial likelihood that the outcome of the referendum might have been different. Accordingly, this is a matter which in my view, the Court must address from first principles, albeit with the guidance available to be gleaned from the decided cases.
In my view, the Constitution does not require that a material effect on the result of a referendum, or election, be interpreted as meaning must necessarily have altered the result, even as a matter of probability.
As a matter of logic, if it is sufficient to sustain a result in a referendum or election that a court is not satisfied, on the balance of probabilities, that the wrongdoing did not materially affect the result, then it should follow that if a court were satisfied that the wrongdoing did materially affect the result, on the balance of probabilities, so as to show that the result would have been different, the court should not order that the election be re-run, but should substitute the correct result. In some election disputes, this is what occurs. The election court will declare the correct result which is binding and effective. It is more logical therefore that an election is only to be rerun when the outcome is in doubt.
It seems that the development of the electoral challenges in the 20th century has meant that such challenges tended to be limited to what might be described as mechanical issues, such as the counting of disputed votes, the resolution of issues as to an individual’s entitlement to vote, and questions such as whether a particular marking shows a preference for a candidate, or should be treated as a spoilt vote. When these disputes are resolved, the impact on the result can be determined not merely as a matter of probability but as a matter of certainty. These examples may have led to a belief by analogy that a mathematical standard also had to be established even in non-mechanical cases, which are however not susceptible to such precise or certain resolution. One example is the case of corruption where it is not clear how many people were affected, how many of them voted and indeed how they voted. Another simpler example raised in argument is also instructive. Amongst the issues which might properly be described as mechanical are those cases where for example, a box of ballot papers is lost and where it may be known how many votes were cast in that box, but it will not be known in whose favour such votes were cast. Counsel referred to the test applied in Canada and referred to in Opitz v Wrzesnewskyj described as the so called “magic number” test. If the margin between the sides on the votes counted exceeds the number of votes in the lost box, then the election will be upheld notwithstanding the irregularity. That is because it is certain that the disputed votes could not have altered the outcome. But if the margin is less than the number of the votes lost, then the election must be re-run. I imagine some similar test would be applied in this jurisdiction and that the underlying reasoning is immediately and intuitively acceptable. But it must be recognised that the test implied by such an approach is not one of certainty, or even probable impact on the result of an election or referendum, but is rather that if the votes in the box had been available, the result might have been different. It is a test of possibility and in some cases it might be quite an implausible possibility at that. Counsel properly drew our attention to subsequent academic debate in Canada as to whether it was necessary to apply the magic number test in its full rigor and whether it was not possible to refine it somewhat by reference to voting history, opinion poll results and outcome in other constituencies. This too makes sense, but it does not alter the fundamental nature of the test. An election is upheld when it can be shown as a matter of certainty that it was not affected by the irregularity, but must be re-run, however analysed, when there is a reasonable possibility that the outcome could have been different.
This conclusion is also supported by a number of dicta in cases where courts have addressed disputed elections and where the problem cannot be necessarily reduced to a counting of votes after resolving disputes as to the validity of any particular vote. It is particularly noteworthy in this context, in my view, that Henchy J. in the course of his judgment in Dillon-Leetch adopted with apparent approval, the test in Gill v Reed (1874) 31 L.T.R. 69, 85 that “the informality is to such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect on the election”. The extract from Woodward v Sarsons quoted above refers to a breach of the rules which “did affect or might have affected the majority of the voters” (p. 751). When stating the test in his own words Henchy J. said:
the election should not be avoided unless the court hearing the petition is satisfied the irregularity amounted to a breach of one of the principles laid down in the body of the Electoral Act 1923 and that the result of the election “has been , or could have been affected”.
Similarly in the In Re Pembroke Election Petition case Palles C.B. referred to those cases where an irregularity did not invalidate an election per se. At common law he said it was necessary to show an irregularity but also whether such irregularity “had, or might have, affected the result” (p. 449). On two other occasions in the same judgment, at pages 449 and 450, Palles C.B. repeated the test in precisely those terms, i.e. that it was necessary to show that the irregularity might have affected the result. Similarly in Levers v Morris  3 All ER 1300, which was approved by Denning M.R. in Morgan v Simpson, Waller J. at page 229 said “[i]f this were a case where numbers of voters had been prevented from voting or where there was a substantial irregularity which might have affected the result then it would have been necessary to order a new election” (emphasis added). In the Canadian case of Opitz v Wrzesnewskyj a majority of the Court had to consider the question of when it could be said that an irregularity affected the result of an election. The majority considered that under Canadian law, an irregularity affects the result not because it alters the outcome but rather because it has an impact on anyone entitled to vote. Once that was established however, then the Court considered a court may annul the election. In exercising that discretion, the court must be satisfied that, because of the rejection of certain votes, the winner is in doubt, and it would be unreasonable for the court not to annul the election. For the purposes of this application, the “magic number” test will be used to make that determination. Finally, it is noteworthy that the European Commission for Democracy Through Law (Venice Commission) Code of Good Practice on Referendums (CDL-AD (2007)008) which was referred to in the judgments in McCrystal was also referred to in this case. One of the principles at paragraph 3.3(e) provides that there must be an effective appeal body which “must have authority to annul the referendum where irregularities may have affected the outcome” (emphasis added). None of these statements are necessarily advertent and directed to the precise issue which arises in this case, but they are instructive in that they suggest a consensus, not perhaps overly analysed or debated, but significant nonetheless, that where the outcome of an election is in real doubt by reason of some irregularity of interference with the process, it must be re-run.
This conclusion in my view follows as a matter of not just textual analysis and precedent, but also as a matter of constitutional principle. Modern liberal democracy involves the ascertainment of the will of the people which it is accepted will be determined by the decision of the majority of them. But democracy depends as much if not more upon the consent of the minority and their acceptance of the result. Part of the consent of the minority is based on acceptance of, and trust in, the process by which the result has been arrived at. Where an irregularity has occurred which is an interference in the conduct of an election or referendum, then there will come a point at which it can be said that a reasonable person will no longer have the requisite confidence in the outcome to allow the result to be accepted as the basis upon which society should collectively proceed. In such circumstances it will be necessary to re-run the election or referendum notwithstanding the difficulties and imperfections of that course.
Accordingly, I would hold that “material effect 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 would be in doubt about, and no longer trust, the provisional outcome of the election or referendum.
Furthermore, I do not accept that the only manner in which material effect on the result of a referendum is by the type of expert evidence canvassed in this case, and which was addressed in such detail and such length during the course of the High Court hearing. That sets a standard which is at once too costly, elevated, demanding, complex, and contestable, and which takes far too much time, knowledge and expertise to address, to be compatible with the requirements of a review of a constitutional process such as an election or referendum. The search for the evidence which would prove effect on the result as a matter of near certainty was lengthy, costly, and ultimately frustrating in this case. Here much of the thrust of the evidence was destructive rather than constructive, addressed not towards showing that the outcome of the referendum had not been affected, but rather that it was not possible to say that it had.
Democracy produces its results, notwithstanding occasional technical imperfections in the process, by the sheer weight of numbers which produces a result in gross, and which normally settles the matter. Any process for review should be capable of producing a speedy, clear cut outcome. In this respect it is worth applying some simple rules of common sense.
First, by the time a court has to consider the question of material effect there will have been a finding of an irregularity or interference in the conduct of the referendum.
Second, it is worth recalling that the reason why such irregularities and interferences are prohibited is precisely because they have the capacity to interfere with, and distort, the outcome of an election and the public acceptance of it. In the particular context of this case the rationale of the decision in McKenna was not that the expenditure of public funds was wrong per se, but that it was wrong because it had the capacity to distort, alter and interfere with the outcome of a referendum. When such matters are established, a petitioner is a long way towards establishing his or her case particularly when addressed in the context of the test set out at paragraph 234 above.
Third, evidence of opinion polls, the trends in voting, and the opinion of expert political scientists and commentators on both the progress of a campaign and the impact of the irregularity and any court determination, are all relevant considerations to be taken into account.
Fourth, however, it should not be lost sight of that a referendum, like any election, is about the votes of individual citizens. While such individuals cannot be compelled to disclose their vote or the reasons that led them to do so, there is no prohibition on their giving such evidence voluntarily. Where it is alleged that significant numbers of citizens have been duped or misled in to voting in a way other than would have represented their views because of misleading statements advertising or some other interference, then it might naturally be expected when the misleading nature of such statements is revealed, that some significant number of those people would be willing to give evidence of the fact that they feel that their vote was improperly influenced and that without that influence they would have voted otherwise.
Finally, in this regard, it is important to have particular regard to the margin. Any court asked to invalidate the outcome of a referendum on the grounds that it might reasonably have been affected by an irregularity or illegality, should have at the forefront of its mind the numbers taking part in the vote and the margin involved. Finally it is also important to have regard to the nature of the interference with the conduct of the referendum.
Applying this approach here, there is no doubt that the issuance of information booklets and other messages which had been found in a number of respects to favour the Yes side is a serious breach of the government’s duties as outlined in the McKenna case. But it does not necessarily follow that it is a serious interference in the conduct of the referendum. The majority of the statements contained in the information booklet are statements to which no objection could be made. Those that were found to lack balance, were condemned on that ground and not necessarily because they were likely to be influential still less decisive in terms of the casting of any votes. While acknowledging that the impact of partial statements, presented as neutral information, may be significant, it still seems clear that the government’s information campaign was primarily information and likely to have less immediate impact than the advertising campaign at issue in Hanafin which was designed to obtain Yes votes, and even in this regard, making every allowance for the justified scepticism with which the Court approached the evidence of the impact of advertising on voting. On the other hand, the margin here was on any view very substantial indeed. It is necessary for the petitioner to demonstrate that there was a reasonable possibility that there were either 85,000 people who voted Yes who would have voted No, or alternatively 170,000 people who did not vote but would have voted No, or some combination of the two. In my view, it is clear from the decision of the High Court that the petitioner’s evidence fell decisively short of this standard. It is in my view particularly telling that less than a handful of individuals came forward to say, with varying degrees of plausibility, that their actions at the referendum, whether voting or abstaining from voting, were affected by the contents of the government’s information campaign.
I acknowledge that the trial judge applying some of the dicta in Hanafin at times relied on the evidence as to the lack of data, and also that it was necessary to prove that the constitutional interference produced a majority in favour of the proposal. However it is clear that he considered the evidence fell well short of this standard and was wholly insufficient to establish the petitioner’s case on any test, and for the reasons set out above I consider this conclusion was entirely correct. Furthermore the test set out above of the view a reasonable person would take is an objective test which can and should be applied by this Court. I would accordingly dismiss the appeal on both the petition and the plenary proceedings. The result is that the provisional outcome of the referendum becomes final and the amendment voted on by the people on the 12th of November 2012 becomes part of the Constitution.
As a matter of principle, it is entirely unsatisfactory that for more than two years the people have not had the benefit of a constitutional change they, or a majority of those who voted, agreed to. It is also unsatisfactory that those conscientiously opposed to the amendment may have considered that the result was flawed, but beyond effective scrutiny. I hope that it will be possible in the light of this judgment to limit the number of challenges that might be taken, and if initiated, granted leave, so that only matters with a real likelihood of resulting in a setting aside of a referendum result are the subject of court proceedings. It should also be possible to simplify the issues raised in challenges to referendum outcomes so that they are easier to resolve speedily, one way or another and if there is real reason to lose trust in the outcome of the poll to have that recognised and remedied. But it must also be recognised that when an important issue arises such as that raised in this case, that complex issues will be involved, and some time will be required to hear and determine any case and any appeals. It is all the more important therefore that those with the power to do so should strive to ensure that future referenda should be resolved in the ballot box and should not give rise to disputes and differences that lead to court proceedings. The responsibility for the unacceptable interference with the will of the people which the process has occasioned in this case can be traced to a decision to spend €1.1 million of the people’s money in a very short and sensitive period. That money, if spent lawfully, would merely duplicate the efforts of the Referendum Commission established to provide neutral and fair information to the people in the context of a proposed constitutional amendment. Insomuch as any information provided by the government is different from that approved and disseminated by the Commission, there would be an inevitable danger of partiality, particularly where it was being provided by the Department of State sponsoring the proposed amendment and convinced of its merits, and when a clear distinction was not maintained, or perhaps in the circumstances was not capable of being maintained, between the importance of taking part in the referendum and the perceived importance or desirability of the proposal being put.
I agree fully with the judgment delivered by O'Donnell J. in these two appeals. I write this concurring judgment for the purposes of explaining briefly some aspects of the reasons why I support the conclusions set out by O'Donnell J. in his judgment. I also include some observations on a number of the issues which arose in the course of these proceedings.
For the avoidance of doubt, I wish to emphasise that nothing which is said in this concurring judgment should be taken as in any way indicating that, in my view, the test set out at para. 234 of the judgment of O'Donnell J. should, in any way, be altered or modified. It is important, for the purposes of absolute clarity, that there be no doubt but that the test set out in that paragraph represents the basis on which a court faced with a referendum petition should analyse the question of whether a material effect on the result of the referendum in question, resulting from an established breach of law, has occurred. Indeed, it might well be said that one of the difficulties which arose on the appeal in respect of the referendum petition in this case was identifying with precision the test which this Court applied in Hanafin v Minister for the Environment  2 I.R. 321. The respective judgments of the members of this Court in that case seem to express the test in somewhat different terms, thus leading to a potential difficulty in identifying a test which was supported by a majority of the members of the Court. In my view, the proper test is that identified by O'Donnell J. in his judgment in these appeals.
As the facts which underlie the issues which arise in both of these appeals are very fully set out in other judgments I do not propose to rehearse them here. I turn first to the issues.
2. The Issues
There were three main issues which arose on these appeals. The appeals themselves, of course, encompassed both the referendum petition brought before the High Court challenging the provisional result of the Referendum in respect of the 31st Amendment of the Constitution (Children) Bill (“the Referendum”), and the plenary proceedings which challenge the consistency of certain aspects of the Referendum Act 1994 (“the 1994 Act”) with Bunreacht na hÉireann. The issues which arose in that constitutional challenge were, to a significant extent, interlinked with some of the issues which arose on the referendum petition, not least the issue of the proper test or standard by reference to which it might be appropriate for a court to interfere with a provisional result.
However, the broad issues were as follows:
An issue concerning the proper interpretation of the 1994 Act, insofar as it relates to a technical question of interpretation, arising out of the fact that the procedure contemplated involves an application by the petitioner for leave followed, if leave is granted, by a trial. The specific issue concerned whether the materiality of any established irregularity only properly arose, as the petitioner/appellant (“Ms. Jordan”) argued, at the leave stage;
The proper test to be applied in determining whether any established irregularity in the conduct of a referendum had, as specified in s.43(1) of the 1994 Act, materially affected the result;
Whether, applying the appropriate test, a material affect had been established in this case.
As appears from other judgments, the constitutional issue was concerned with the second of those questions for, it was argued, if the test was as submitted on behalf of the defendants/respondents (“the State”) then, it was said, the 1994 Act was inconsistent with the Constitution in that regard. I turn first to the technical question concerning the proper interpretation of the procedures provided for in the 1994 Act for the conduct of a referendum petition.
3. The Leave/Materiality Issue
On that technical question of interpretation of the 1994 Act, insofar as it governs the conduct of a referendum petition, I agree with the reasoning set out in the judgment of O'Donnell J. I would add only two further observations.
It is a fundamental requirement of fair procedures that any party potentially affected by a finding adverse to their rights and obligations should have an opportunity to be heard in an appropriate way on the issue in question. That principle applies just as much in the context of an election or referendum petition as it does in any other form of litigation. In the context of a referendum, it must be recalled that those who support the provisional result have just as much of an entitlement to have the argument in favour of upholding that provisional result fully considered by the Court as those who wish to challenge the provisional result have to present the opposite case. It must also be recalled that it is possible that a provisional result which led to the rejection of the proposal contained in a referendum can also be the subject of a challenge. It may well be that such a challenge would not be likely to be of the type which arises here, for it is unlikely that it would be contended that improper government expenditure influenced the result against the passage of a referendum. It is, after all, unlikely that a proposal to amend the Constitution, which is required to be passed by both the Dáil and the Seanad before being put to the people, would be likely to be opposed by the government of the day (although there is no formal reason why that might not be so).
But whichever side may challenge the result, those holding the opposite view are entitled to a procedure which ensures that the case against the challenge is fully and properly heard. In passing, I should observe that the provisions of the 1994 Act, and in particular ss. 44 and 46, which provide for the service of a petition in respect of which leave has been given and the conduct of the trial of such a petition respectively, are silent as to the parties, other than the petitioner and the Director of Public Prosecutions, who may be represented, although s.46 clearly contemplates that there may be a number of parties to the petition. Likewise, s.53 contemplates costs being awarded against a party without addressing whom such a party may be. The Rules of the Superior Courts which apply in respect of all forms of election petitions (Order 97) seem to expressly contemplate that any person who is required to be served with a petition, or any person who is directed by the court to be so served, can appear. In substance, that would seem to require that the Minister for the Environment is to be properly regarded as a Notice Party, together with any one else whom the court directs.
It should also be noted that the only parties who, in election type petitions, are regarded as respondents are electoral candidates affected or potentially affected by the petition in question. It does appear that the Minister for Children and Youth Affairs, the Government of Ireland, Ireland and the Attorney General were directed to be served in this petition and should, therefore, be regarded as Notice Parties. It is not clear as to whether the Minister for the Environment took any formal position. However, any such technical deficiency is more than overcome by the fact that the Minister for the Environment is a member of the Government of Ireland which was itself a Notice Party. However, it is worth commenting that it is important that there be clear precision as to who is to be regarded as a party to any specific election petition. This is particularly so in the context of a referendum petition, where the interests of citizens generally are engaged to a greater extent and where there are no candidates as such. Furthermore, it would, in my view, be useful if some attention were to be paid to putting in place procedures (whether at the level of legislation or rules of court) to ensure that the position of parties with a legitimate interest in the outcome of a referendum petition can be properly represented at the trial of such petitions.
Be that as it may, it is against such a background that the construction of the 1994 Act urged on behalf of Ms. Jordan needs to be considered. It is suggested that a proper interpretation of the relevant provisions of the legislation leads to the conclusion that the issue of whether an alleged irregularity in the conduct of a referendum had a "material" effect is to be considered only when an application for leave is brought before the Court. It must also be recalled that, while on the facts of this case the leave application was heard after the State was put on notice and at the same time as the substantive hearing, the 1994 Act contemplates that leave may be granted ex parte and having heard only those who might wish to challenge the provisional result. To suggest that, assuming leave is given, those who might wish to oppose the challenge and uphold the provisional result would be precluded, at the full hearing, from addressing the issue of materiality, would be to suggest that such parties would be denied a fundamental entitlement to be heard on an important part of the case.
Whatever may be the appropriate test to justify court interference with a provisional result, it involves some assessment of the material effect of the asserted irregularity. To require that an assessment of the effect of the irregularity be made once and once only at the leave stage, and thus, in a manner which did not give to those who wished to uphold the provisional result any opportunity to be heard, would be a significant breach of fair procedures.
To suggest that this could be cured by giving an opportunity to seek to have leave set aside on the grounds that materiality had not been properly established does not seem to me to provide an answer. It is true that it is always possible for a party who is affected by an order made ex parte to seek to have that order set aside. However, where the ex parte order is simply a means of introducing a filter to the commencement of proceedings which would, where leave is given, be followed by a full hearing, it is normally only considered to be appropriate to seek to revisit the ex parte order (rather than to contest the substantive hearing) where it can be suggested that the ex parte order was wrongly obtained by, for example, the placing of misleading evidence before the court or a failure in the duty of candour which lies on every applicant for an ex parte order. It would be open to significant doubt, in my view, whether it would be appropriate, at least in most circumstances, to seek to revisit an ex parte leave order by inviting the court to conduct what would, in substance, be a full hearing on the issues within the framework of an application to set aside leave.
In any event, even if such were possible, same would create an extraordinarily complicated procedural mire. As others have commented in their judgments in this case, it is of significant importance that a final determination of the result of a constitutional referendum is not held up by a lengthy court process. If the provisional result is to be confirmed then that should be done as quickly as possible so that the constitutional amendment approved by the people becomes effective without any delay. Likewise, if grounds are established for requiring a recount, a rerun or other intervention by the court, then those measures should be put in place as a matter of urgency to ensure that a final and definitive result is confirmed in the shortest possible time.
The interpretation urged on behalf of Ms. Jordan would run the risk of either or both of significant procedural unfairness, by excluding or minimising the entitlement of those supporting the provisional result to be heard on the question of materiality, or significant procedural over-complication almost inevitably leading to delay in reaching a final conclusion. As the process for amending the Constitution is itself a process with a high constitutional value, an interpretation which led to what I think can be described as, at a very minimum, giving rise to very significant difficulties, could only be favoured if no alternative interpretation were available. Even if, therefore, I had come to the view that there was some technical merit in the argument advanced on behalf of Ms. Jordan under this heading, I would, nonetheless, have favoured the interpretation adopted in the judgment of O'Donnell J. However, in any event, as noted earlier, in my view the proper construction can be arrived at by means of the analysis adopted by O'Donnell J. in the course of his judgment.
Before leaving this aspect of the case I wish to make one final observation. It is a point which may well have some relevance to other issues in these appeals as well. While there are many similarities between the voting process which is designed to elect public representatives, on the one hand, and that adopted in the conduct of referendums, on the other, there is, in my view, one important distinction.
Both processes involve the people exercising their constitutional entitlement to vote in the selection of their representatives or in determining the content of the Constitution. However, the election process also involves the rights and, potentially, obligations of those who seek office. While the electorate has an entirely legitimate and constitutional entitlement to vote on the question of who should be elected to office, it is fully open to the Oireachtas to put in place measures which impose obligations on those who seek office and which further provide, within certain boundaries which do not need to be explored for the purposes of this case, for the consequences of electoral misbehaviour, including the deprivation of office in respect of those in relation to whom significant electoral misbehaviour is established. There is, in my view, no reason at the level of principle why it may not be constitutionally possible to deprive a candidate of victory as a consequence of established serious misbehaviour in the electoral process even if it may not be clear that the relevant electoral misbehaviour actually affected the outcome of the election in the sense of affecting those who were elected.
However, different considerations apply in the case of a referendum. While it may, as a matter of practical politics, be possible to identify those, whether within the party political or elected representative system or otherwise, who support or oppose a particular referendum, the people have a right to have their views on the constitutional amendment in question accepted and enforced independent of the conduct of those who may support or oppose the referendum concerned. A referendum which the people genuinely support should not be denied passage even if some of those who support a yes vote have acted improperly. It is only where such improper actions have actually affected the outcome or, for reasons which I will briefly turn to, have potentially done so, that it is appropriate for the courts to intervene, for it is only in such circumstances that it can be said that there is a real risk that reasonable and informed members of the public would not actually trust the provisional outcome of the referendum as truly representing the will of the people. That analysis has some affect on the proper test to be applied. However, for present purposes, it is also important to emphasise that those who take a contrary view to a challenger to a provisional referendum result must be entitled to be assured that the case in favour of that provisional result will be fully and fairly heard. A referendum result should not be displaced simply because misconduct or error has been established. It should only be displaced where there is a basis for suggesting that what went wrong has actually affected the outcome.
The next major issue which arises in these cases is as to the test by reference to which that judgment should be formed. I, therefore, turn to that question.
4. The Test
It is important to emphasise that the types of irregularity which may potentially affect the result of any electoral process are many and varied. But so also is the extent to which it may be possible to analyse with precision the effect of any established irregularity. Some irregularities involve purely technical or “mechanical” questions concerning aspects of the casting of ballots, the counting of votes or the assessment of whether a ballot paper should properly be included in the count. In many such cases it will also be possible, if the court is persuaded that there was an irregularity, to determine the precise effect of that irregularity with absolute precision. If votes have been counted which should not have been included then the relevant ballot papers can be looked at and an exact adjustment made. Likewise, if votes have been excluded which should have been taken into account, a similar adjustment can be made.
In an intermediate category, cases may be found in which there has been an established irregularity in relation to votes cast, or which should have been cast, but where it is not possible to tell with precision how the relevant votes would have been cast had it not been for the irregularity. Examples in this category would be cases where voters were wrongfully deprived of the opportunity to vote, or where votes were cast but for some reason were not included in the count, and where the relevant votes are no longer available to ascertain how they were, in fact, cast. In such cases, it will normally be possible to identify, with some reasonable level of precision, the maximum extent of the possible effect of the irregularity. It should be possible, for example, to identify the number of voters wrongly excluded from the opportunity to cast their ballot or the number of votes actually cast which can no longer be found. These issues raise the so-called “magic number” question which has been addressed in some of the Canadian jurisprudence to which we have been referred, and which is cited in other judgments of the Court. In some cases the answer may be straightforward. If the maximum number of votes potentially affected by the irregularity is 1,000 and the margin at the end of the day is more than 1,000 then the irregularity could not have made a difference and no basis for upsetting the original result would exist. The more difficult question arises where the number of votes affected is less than the margin, but where, as a matter of practicality, it is unlikely, or even highly unlikely, that all of the relevant votes affected by the irregularity in question would have been cast in the same way, so as to change the result.
However, the third, and most difficult category of case is one in which the irregularity is not so much concerned with practical questions, such as legitimate voters being denied the opportunity to vote in a proper way, or votes which have been properly cast not being taken into account, but rather where improper activity has been established which might be argued to have affected the way in which people voted. Some mention in that context should be made of cases involving an allegation of personation or other forms of voter fraud. It may be possible to establish that certain votes were fraudulently cast and to invite the court to determine, for the purposes of assessing materiality, whether it is possible to say how those votes were cast and whether the removal of those votes from the process would affect the result. Such cases do not really fit into the third category which I have sought to identify. They cannot properly be described as cases where there has been, on the face of things, a proper ballot and a proper count, but where the potential problem may stem from the fact that people may have been improperly influenced in the way in which they actually voted.
While a case involving unconstitutional expenditure, such as the present, is an example of the third type of irregularity, there can be others. Cases of, for example, bribery come to mind. A result may have been declared on the basis of an unimpeachable process for the casting and counting of votes. However, it may be established that bribery or other electoral malpractice of that type was deployed. In such a case the effect is more difficult to establish, for it requires an assessment of how people might have voted were it not for the irregularity. There is, therefore, a very real distinction to be made. On the one hand there are cases which focus simply on whether all the votes which should have been cast and counted (but only those votes) were properly assessed, but which do not involve any assessment of the way in which any individual voter cast their ballot (except to the limited extent of determining whether the total number of votes affected by any irregularity could have made a difference). On the other hand, there are cases where the irregularity concerns whether votes which were, on their face, properly cast and counted, may have become tainted by a more general form of irregularity.
This case is clearly of that third kind. There is no suggestion but that the provisional result properly represents the calculation of all of the votes which were correctly cast and counted, and there is no suggestion that voters were improperly deprived of the opportunity to cast their votes or to have votes which were cast properly counted.
In such a case it must, at least to some degree, be uncertain as to what the precise result, in terms of votes, would actually have been had it not been for the irregularity. It is not simply a question of counting votes which were wrongly excluded, or estimating the maximum number of persons affected, for example, by a wrongful failure to open a polling station. It is a question of estimating how the electorate would have cast their votes had it not been for the relevant irregularity. Did people actually vote who might not have voted had it not been for the irregularity, or did people not vote who might have voted in its absence? Did people actually change their vote? All of these, and doubtless more, are possible consequences of irregular expenditure, but they are in the nature of hypothetical considerations. The Court is being asked to assess what would, hypothetically, have happened in the event that the irregularity concerned had not occurred.
Against that background, I agree with the analysis to be found in the judgment of O’Donnell J. as to why the test proposed in his judgment properly meets the constitutional values at stake. A case in which a reasonable and informed citizen could not reasonably be expected to trust that the result would necessarily have been the same in the absence of whatever irregularity is established is a case in which the provisional result cannot be said to necessarily represent the will of the people properly exercised in accordance with law.
To the reasoning of O’Donnell J. I would merely add one further observation. The test of the balance of probabilities which is used in all civil proceedings applies in its pure form to the assessment by a court, or other decider of fact, of events which actually did or did not occur, but where uncertainty arises as to the facts because the evidence is weak, inconclusive or contradictory. In such a case, the decider of fact is required to assess all of the available evidence and to decide what actually happened on the balance of probabilities. But in such cases the court, or other decider of fact, seeks to reach a conclusion about an event which did or did not actually occur. In cases where a court has been asked a somewhat different and hypothetical question about what might have been, a somewhat different approach has sometimes been adopted. Where a court is, for example, asking itself as to what would have happened in the event that a particular act of wrongdoing had not taken place, the court is, by definition, asking itself a hypothetical question. The wrongdoing did occur and has been established. In order to assess the appropriate remedy, the court is required to compare what actually happened as a result of that wrongdoing with what might, hypothetically, have happened if the wrongdoing had not occurred. In some cases the answer may be obvious and straightforward. If the car had not crashed, the plaintiff would not have broken their leg and would not have suffered an interruption in their work with consequent loss of wages. If the defendant had supplied the contracted goods, then the plaintiff would have had those goods for sale and would, doubtless, have been able to secure the market price and achieve whatever profit that reflected.
But other cases may be more complex. What would the patient or client have done had they been properly advised by their lawyer, accountant or doctor? In many such cases there may be a range of possibilities, no single one of which may even be probable (in the sense of being more than 50% likely). Many other examples could be given. In such cases, the courts frequently adopt an analysis which accepts that there is a range of possible consequences for a hypothetical event, all of which need to be properly taken into account in assessing the overall consequence. For a brief discussion of this question note might be taken of the comments which I made, in my article, writing extra judicially, "Frances E. Moran Memorial Lecture: ‘Do Hard Sums Make Bad Law? Mathematics in the Courts’", (2014) 37 D.U.L.J 1.
It is not, of course, the case that the standard of proof to be applied in civil proceedings is ever anything other than the balance of probabilities. However, it is important to analyse carefully the precise question which needs to be resolved by reference to that standard. Where the question is as to whether a disputed fact is correct then the application of that standard in its pure form is easily understood. However, where the question raises the range of hypothetical possible consequences of an event which did not, in fact, occur, then the question itself may be different, and may involve the court assessing a range of realistically possible consequences. A court may, in such circumstances, reasonably conclude on the evidence that there was, for example, a realistic possibility of a particular course of action having been adopted by a party to whom negligent advice was given. That possibility may fall short of a probability but nonetheless the client or patient may still be entitled to damages.
Without pushing the analogy too far, it seems to me that a like consideration arises in respect of the third category of voting irregularity which I have earlier identified. Assuming that the irregularity is established, then the question which must be asked is as to what would have happened had the irregularity not occurred. That is necessarily a hypothetical question. The irregularity did occur and people voted whatever way they did in the light of that irregularity. How they would have voted had it not been for the irregularity is necessary hypothetical, and it is, equally necessarily, the case that there is a range of possible outcomes to such analysis, no one of which is “probable”. The test proposed by O'Donnell J. is not one which requires a pure balance of probabilities approach because there is, in reality, a whole range of possible consequences which may be capable, within a margin of error, of being assessed, but none of which actually involves an assessment of facts which either did or did not occur.
It might, of course, be possible to attempt to answer the question as to whether more than 50% of the weighted range of possible consequences would have resulted in a different outcome to the referendum to the one contained in the provisional result. But any such analysis would, necessarily, involve questions of margins of error and statistical significance. The extent to which the absence of perfect information (a point to which I will return) might increase the range of potential error adds a further complication. To test this question, one might envisage a case where there was an unimpeachable set of survey data available which all experts agreed gave rise to a 51% probability that the relevant irregularity did not affect the result (in the sense of turning a yes into no or a no into yes) and a corresponding 49% probability that it did affect the result. Should such a result stand? On one view, it is probable (even if only just) that the result was not affected by the relevant irregularity. But another way of looking at exactly the same figures is to say that an informed citizen would be faced with being asked to trust the result of a referendum where we cannot approach the issue of the effect of the relevant irregularity with precision, and where the best we can do is to say that there was only a 49% chance that the irregularity changed the result. In my view, it is sufficient to state that proposition to understand why it cannot represent the proper test.
On that basis, I have no hesitation in agreeing with the test as formulated in the judgment of O'Donnell J. So far as the application of that test to the facts of this case is concerned, I have little to add to the analysis found in other judgments of the Court. I would only emphasise one point. The margin in this case was very significant. The evidence concerning the effect of the undoubtedly unconstitutional governmental expenditure was limited. But it is important to emphasise that, in a case where it was otherwise, and the evidence of effect greater and the margin smaller, a very different finding could be reached. I do, in the context of the evidence in this case, however, wish to make some brief observations on the use of survey evidence in litigation.
5. Survey Evidence
One of the significant disputes which emerged before the High Court, and which was the subject of significant debate before this Court, concerned the use of survey evidence coupled with the expert analysis of that survey evidence by political scientists. It is not my intention to comment on all of the issues under that heading which were canvassed both at the trial and on appeal. Those issues have been addressed both in the judgments of the trial judge and in other judgments of this Court on these appeals. However, there are a small number of observations which I wish to make.
First, I should record that it does not seem to me that there is any reason in principle why survey evidence and expert views derived from that survey evidence cannot form an appropriate evidential basis for certain types of finding of fact. While there may well be a legitimate debate as to the extent to which the sort of survey evidence frequently deployed in the social sciences can be compared to the type of experimental evidence used in the physical sciences, it must be recalled that courts should have regard to any potentially probative and admissible evidence which is material to any question of fact which the Court needs to determine to decide the case before it. Ordinarily, questions concerning the reliability of scientific evidence (whether of general theory or specific to the facts of the individual case) go to the weight to be attached to that evidence in reaching an overall conclusion. If, and to the extent that, a court is satisfied that survey evidence can have a bearing on a factual decision which the court is required to make, then that evidence should be considered. To the extent that there may be legitimate questions over the survey methodology, the interpretation of the results of the survey or the conclusions which can be reached as a result of the relevant findings, those are matters which affect the weight which the court should attach to the evidence in question and may, in that way, have a significant effect on the ultimate outcome of the court's factual findings.
But in that regard it does not seem to me that survey evidence is any different to any other form of forensic or experimental evidence. The circumstances in which forensic evidence was obtained or maintained, the methodology used in its collection or analysis, the scientific basis for its interpretation and the expert views as to what can be gleaned from the relevant information are all matters which may, to a greater or lesser extent, be the subject of debate in any case in which expert evidence based on an analysis of physical or other materials may be of assistance in reaching a conclusion on the facts.
But a second matter, which must also be borne in mind, is that it is important to keep clearly in focus the precise question with which the court is concerned in any particular case. Many disciplines (not least the social sciences) have appropriate protocols for the conduct of research and for reaching conclusions based on that research. It would, indeed, be foolish for any court which is asked to take such evidence into account not to have regard to whether relevant protocols or recommended practises were complied with. But it must be recalled that the task of a court is not the same as the task of those charged with considering whether, for example, an article should be published in a learned peer review journal. A court is required to make a decision on the facts and is invited to take certain evidence into account in assessing those facts. The precise, factual question which the court may have to address may not raise exactly the same as the issue which might typically be required to be addressed in a journal article. A lack of compliance with what some might consider to be best practice might legitimately lead to an article which reflected the results of relevant research not being accepted for publication. But provided that a court is of the view that the findings were of some assistance in determining facts which needed to be found to decide the case, then the court should consider those findings while, of course, taking into account, in considering the weight to be attached to same, any substantiated criticism of the methodology or analysis.
It must also be acknowledged that the precise factual question which the court has to answer can have a very significant bearing on the extent to which any legitimate criticism of the methodology or methods of analysis might lead to a significant devaluation of the expert conclusions reached for the purposes of the case in question. If, for example, a court was required to be satisfied that there was a more than a 50% likelihood that a particular state of affairs persisted, then it might well be necessary to conduct a very rigorous statistical analysis to ascertain whether that threshold had been reached. It might, in that context, be necessary to resolve debateable questions over the precise statistical methodology which should be adopted. Questions concerning the extent to which the raw data was appropriate or sufficient to allow a sufficiently rigorous analysis to be conducted might also loom large. As in all other cases, the question of the onus of proof may, where the evidence is sparse, prove to be decisive. A legitimate criticism as to the methodology adopted might lead to a finding that the party on whom the onus of proof rested had failed to discharge that onus.
In the context of this case, the evidence which might be regarded as sufficient to establish that, as a matter of mathematics, it was more than 50% likely that the unconstitutional expenditure of the government changed the result of the referendum from a no to a yes could be very different from the kind of evidence which would be material in deciding whether the test which O'Donnell J. has set out in his judgment has been met.
That leads to the last point. Much of the criticism which was to be found in the evidence of Professor Marsh as directed towards the evidence presented on behalf of Ms. Jordan was concerned with the ideal conditions in which one might structure survey evidence and data in order to reach conclusions on the materiality of the unconstitutional government expenditure which occurred in this case. But it must be recalled that every day, in all sorts of cases, and in relation to all sorts of evidence, courts are called on to do the best they can with the evidence which happens to be available. Doubtless it would make the determination of liability in motor accident cases a lot easier, and rarely controversial, if the circumstances of all accidents were clearly caught on CCTV. Doubtless an unfortunate but explained gap in the records of events may make it much harder to assess business conduct or professional activity which may be the subject of litigation. Very many other examples could be given. But in the messy world of real litigation, courts rarely have the luxury of having available to them evidence obtained in what might be called the real world equivalent of laboratory conditions. But courts are nonetheless required to do the best they can in assessing such evidence as may be available. Of course, it remains the case that it is open to a defendant to assert that the plaintiff has just not put forward sufficient evidence to discharge the onus of proof. Survey data and its analysis are potentially as subject to that type of criticism as any other type of evidence. It may be said that it just falls so far short of the kind of materials on which any sort of safe conclusion could be reached so that the party presenting the evidence in question has failed to meet the onus of proof. But the fact that the evidence falls a long way short of the ideal which might be put in place, in advance, by experienced professionals in the social sciences, does not mean that the evidence may not, nonetheless, be sufficient, in an appropriate case, to discharge the onus of proof.
That question, in the context of survey data and analysis, is no different to that which arises in the context of any other kind of evidence. The question is not whether there might, theoretically, have been better evidence. There almost always will. The question is whether there is enough.
In the light of those general observations, I wish to conclude with a few points concerning their application to the facts of this case. First, I should say that I have no reason to doubt but that Professor Marsh was correct when he said that the proper way to conduct a rigorous analysis of the effect of an intervention, such as the government expenditure in this case, would be to have a series of surveys from which the impact of the relevant expenditure might be inferred. But to impose such an obligation would be to require a person to anticipate a breach of the Constitution in the course of a referendum campaign. How else would a potential challenger be able to have the evidence which Professor Marsh identified as being ideal unless they had decided, just in case, to commission the relevant laboratory condition surveys in advance? Such surveys might well be the appropriate standard for a professional political scientist setting up, in advance, a project designed to analyse the impact of various events in the course of an election or referendum campaign. A failure to adopt such practice might well be a legitimate criticism of someone who set themselves the task, for research purposes, of conducting such an analysis, but without putting in place the appropriate periodic surveys. But that is not the question with which a court is concerned. The question which a court must answer is whether the available evidence is sufficient to discharge the burden of proof.
What happened in this case is, of course, that, short of Ms. Jordan commissioning an ex post facto survey of her own, the only raw data available to her experts was the information available from the Referendum Commission. Hardly surprisingly, the focus of the data collected on behalf of the Referendum Commission was designed to assist it in determining whether the various programmes which it had adopted in fulfilment of its statutory remit, to inform the electorate on the referendum and to encourage citizens to vote, had been successful. Using data for a purpose other than that for which it was collected always runs some risk (to a greater or lesser extent depending on the circumstances) of encountering difficulty stemming from the data not being ideal or even fit for purpose. But the fact that the data in question was not ideal did not, in my view, mean that it could not properly be taken into account and weighed in the balance in considering whether it had been established that there was a material effect.
In that context, I should touch on the constitutional issue. Put at its simplest, the case made on behalf of Ms. Jordan was that the interpretation which the State sought to place on the burden which she bore to establish material effect was so great as to render it impossible, or virtually impossible, or excessively expensive to show materiality even where there was, as here, a clearly established breach of electoral law. It does seem to me to be worthy of some comment that if the Court had been persuaded that the only way in which materiality could be established was in the manner suggested by Professor Marsh, there might well have been very considerable merit in Ms. Jordan's constitutional challenge. Such a level of proof would have rendered a challenge to the result of a referendum, based on the sort of unconstitutional expenditure arising in this case, close to impossible if the standards identified by Professor Marsh were the only ones which could produce evidence sufficient to prove materiality. If a different conclusion as to the test for materiality had been reached and if it had, in that context, been accepted that materiality could only be established in the manner identified by Professor Marsh, then I might well have come to a very different view on the issue of the constitutionality of the legislation.
Finally, I should comment that it is important that it be kept in mind that expert evidence of the type debated in this case is no different, at least at the level of high principle, to any other type of evidence which may need to be considered on appeal. It will always be possible to argue that the evidence does not bear any inference drawn. It will always be possible to point to any clear error in the way in which the evidence was approached and assessed. It will always be possible to argue that the evidence is insufficient to meet the burden of proof. But where there are competing but legitimate professional views on a topic, then it is really a matter for the trial judge to reach an assessment on those questions. While it is often emphasised that a trial judge has the benefit of hearing witnesses whose credibility may be in question giving evidence, it seems to me that there is another aspect of the proper reluctance of appellate courts to interfere with findings of fact of a trial judge which needs to be emphasised. Where there are competing professional views, the trial judge will have had the benefit of hearing those competing views teased out and challenged, frequently over a significant period of time. While this Court will, of course, have a transcript, there can be little doubt but that a trial judge is, nonetheless, in a better position to reach a conclusion as to which professional view is to be preferred. In the absence, therefore, of established error or findings which are not sustained by the evidence at all, the appropriate reluctance of appellate courts to interfere with findings of fact applies equally in the context of expert evidence such as that tendered in these cases as in respect of any other evidence.
As noted earlier the purpose of this concurrence is to set out some of the reasons why I fully agree with the judgment of O'Donnell J. delivered today and not least the test for determining the materiality of the effect of established irregularity which he proposes at para. 234 of his judgment. I also add some observations on the use of survey evidence in a case such as this.
I would finally add that it is important to emphasise that the test identified by O'Donnell J. is one which is far from impossible to meet. The problem in this case was that the margin, at the end of the day, was quite significant, and the evidence concerning the effect of unconstitutional government expenditure did not suggest that there was any realistic basis for fearing that the expenditure concerned could have altered the result.
However, it requires to be said that, in a different case, the Court might be faced with a narrower result coupled with stronger evidence of the effect of unlawful expenditure. In such a case I have no doubt but that it would be possible to conclude that the hypothetical reasonable and informed observer could not be expected to trust that the result might not have been changed by unconstitutional activity. If such a case were to occur then it would not only be open to this Court, but it would be the duty of the Court, to take action and, for example, require that a poll be reconducted. Such a consequence would, undoubtedly, be highly undesirable. In order that it be avoided it is important that every conceivable care be taken to ensure that a referendum is properly conducted in all respects.
Justice John MacMenamin
I agree with the judgment and orders proposed by the Chief Justice, O’Donnell J. and Clarke J. I also agree with, and endorse the judgment of the Chief Justice, which analyses the 1994 Referendum Act in detail, and the principles set out in O’Donnell J.’s judgment under the heading “The Test”. No part of this judgment is, in any way, to be read or interpreted as differing from what is said in the relevant and material principles and analysis contained in those judgments. I concern myself here with a focus on three issues; first, the procedure involved in the High Court hearing; second, some of the constitutional considerations which arise in interpreting the Referendum Act 1994; and third, some observations on the interpretation and application of the judgment of this Court in Hanafin v Minister for the Environment  2 I.R. 321.
The Origins of the Proceedings
From the outset, it is necessary to reiterate that this is not a case where the government misconduct in question has gone without judicial remedy. Both proceedings before the Court derive from the judgment and findings of this Court in McCrystal v The Minister for Children and Youth Affairs  IESC 53,  2 I.R. 726. In its ruling, on the 5th November, 2012 (“the Ruling”), and subsequent reasoned judgment delivered on the 11th December, 2012, (collectively “McCrystal”), the Court held that the information campaign (“the campaign”) which had been conducted by the Minister for Children and Youth Affairs (“the Minister”) gave rise to breaches of the Constitution of Ireland, insofar as the conduct of the campaign could not be regarded as having been fair, equal, impartial or neutral. As a consequence, this Court held that the government campaign had resulted in a violation of principles derived from the judgment in McKenna v An Taoiseach (No. 2)  2 I.R. 10 (“McKenna No. 2”).
In both the petition and the plenary proceedings herein, Ms. Jordan not only challenged the misconduct addressed in McCrystal, but also placed in issue what, she contended, was further wrongful conduct by the State parties, following on from the ruling of this Court on the 8th November, 2012 (“the post-ruling conduct”). The McCrystal ruling was delivered during the currency of the referendum campaign, just 2 days prior to the vote.
These proceedings seek far more radical relief than in McCrystal, however. Ms. Jordan asserts that, in order to uphold the McKenna principles (which have not been in any way placed in issue in these proceedings), the result of the Referendum should be annulled and a new referendum held. Alternatively, she contends, that insofar as the statutory machinery for challenging a referendum outcome, contained in the Act of 1994, places the onus of proof on a petitioner; it sets an “impossible” threshold of proof, and is thereby invalid having regard to the Constitution. It is said the Act fails adequately to provide for remedies for breach of the McKenna principles; and that, insofar as the judgment of this Court in Hanafin v The Minister for the Environment  2 I.R. 321 supports McDermott J.’s rulings herein as to onus, standard of proof, procedure, and remedy; then that judgment was wrongly decided.
In McCrystal, this Court has already delivered a judgment wherein it granted a remedy, in the form of a declaration, saying, in terms, that the State parties had engaged in campaign misconduct. The appellant finds herself in a situation, therefore, where her case is met with the State response that, both the public interest, and the common good, have already been vindicated by the judgment of this Court in McCrystal, and that the respondents’ misconduct has already been addressed and condemned. Thus, the challenge facing the appellant is both very focused and very deep. But it is made in the circumstance where there has now been an expression of the will of the sovereign people voting in a Referendum, after a legal remedy was granted. Save insofar as these proceedings raise what is termed “post-ruling conduct”, i.e. conduct of the respondents after the ruling of this Court on the 5th November, 2012; the courts in these proceedings have, in effect, been asked to re-traverse, but with different terms of reference, legal terrain which has already been much explored.
The petition and plenary proceedings are considerably interwoven. This judgment addresses issues arising in both appeals. Assuming that the trial judge correctly applied the Act of 1994, and the principles identified in Hanafin; one broad central issue in this appeal is, whether the Referendum Act of1994 was applied in a manner consistent with the Constitution. It follows that, if, when considered in its factual context, that Act was properly applied in the High Court, and is constitutionally valid, then the totality of the appellant’s proceedings must fail.
The Reason for Analysis of the Evidence in Detail
This case was lengthy and costly. It lasted 14 days in the High Court and 3 days in this Court. Some of the expert evidence was very dense. The analysis in this judgment is in rather greater detail than would normally be warranted; for the reason that what is in question is the outcome of a referendum, itself a fundamental process of, and in, our democracy, where the people express their view on a proposal to amend the Constitution. Our democracy belongs to the ‘People of Ireland’, as constitutionally identified. To maintain public confidence, the processes of democracy must be transparent; one of the attributes of our system of government by the people must be that each citizen can reasonably observe and understand, to such level as they require, both procedure and outcome. Under Article 47 of the Constitution, a proposal is “approved” in a referendum when, subject to law, what is placed before the people is adopted by a majority of those who vote.
In the vast range of cases on appeal a very close analysis of the evidence may be unwarranted, provided it is shown that the trial judge reached conclusions which were supported by evidence. This appeal, to my mind, is something of an exception, in that, if the appellant were to succeed; a public undertaking in participative democracy, in which hundreds of thousands of citizens engaged, would be annulled. What occurred in this case merits some general observations.
The Nature of the Evidence and Democratic Process
One concern which emerges clearly from what transpired in the High Court hearing, and in this appeal is, the question of public perception, confidence and trust. These are fundamental to legitimacy. But could certain aspects of the evidence properly and reasonably be perceived as part of a process of engaging in democracy as generally understood? The highly technical econometric evidence in this case is a very distant echo of Athenian democracy. This is evidence, which might, potentially, have determined or annulled, the outcome of a referendum. But can it be said to be both transparent and clear to the ordinary citizen, such that a citizen could trust that evidence if it stands alone and taken in isolation? It is doubtful. It is very desirable that such a consequence be avoided for the future. The judgments of the Court seek to remedy this situation by clearly establishing the legal framework and the evidential thresholds for such a challenge.
The Act of 1994 envisages a two stage process; first, leave, and second, a plenary hearing. On consent, the parties agreed that the leave application be adjourned to the plenary hearing. This course was justifiable in this case, in light of the fact that, exceptionally, this Court had already delivered its ruling and judgment in McCrystal, declaring that there had been breaches of the McKenna principles. Relying on the judgments in McKenna and Hanafin, the State parties adduced expert evidence which had the effect of placing the appellants in a position of having to resort to econometric evidence deploying “regression analysis” as a mode of determining what the outcome might have been but for the campaign misconduct. The High Court judge held that the data upon which the appellant sought to base her case did not readily lend itself to such analysis. The clarity of exposition in the High Court judgments contrasts vividly with the density of some of the testimony. It is an interesting, but fortunately unnecessary, exercise to speculate what might have been the effect on public confidence had the judge been persuaded, upon that econometric evidence, that the State’s conduct had, in fact, materially affected the result of the referendum. While I do not deprecate the use of such evidence in the future, I question whether an outcome based so very much on such testimony would have the required public trust and, therefore, democratic legitimacy. The intent of the judgments herein is to clearly identify the tasks facing a trial judge, so that a procedure to challenge a referendum outcome should be shorter, less costly, and clearer and engender trust. It might be said that the test adopted by the unanimous court is itself predicated on trusting the outcome of a referendum.
Part of this judgment considers the evidence adduced in the High Court. In considering that testimony, it is helpful to reiterate two of the principles from Hay v O’Grady  1 I.R. 210. First, if the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings; however voluminous and apparently weighty the testimony against them. Second, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact, where a different inference has been drawn by the trial judge. However, in the drawing of inferences from circumstantial evidence, an appellate court is in as good a position as a trial judge to proceed. Insofar as findings of fact are made by the trial judge and were supported by credible evidence, subject to the provisos observed above, therefore, this Court is bound by those findings. In fact, the vast weight of the evidence focusing on the issues to be determined, favoured the respondents.
Observations on the Evidence as a Whole
The evidence on the petition can be broadly divided into, on the one hand, testimony as to fact and opinion, and on the other, expert views. With regard to the latter, it is necessary to bear in mind that the trial judge had the opportunity, at first hand, to test out the validity of such evidence, and the soundness of conclusions based thereon. He encountered many of the difficulties now frequently arising with expert testimony. If experts cannot fully agree on a starting point, a trial judge will be placed in a position of having to choose which experts have identified the better working framework for their testimony. A trial court is entitled to assess whether, an expert witness adopts (or is in a position to adopt), a fair framework of reference, from which to make conclusions; whether the witness takes the opposing case and expert evidence into account and the extent to which such a witness is able or prepared to look at context, or “the big picture”; the aptness and reliability of any technical process for analysis adopted; whether the witness has any tendency towards “silo thinking” or tendentiousness in testimony; the degree of engagement with points put to him or her in cross-examination; the extent of acknowledgement of the limitations of his or her evidence in the broader context of the case; and an ability to ensure that “input”, be it of data, sample or survey or analysis, is sufficiently representative and sound to support the “output” or conclusions sought to be drawn from such procedures. This involves a recognition, where necessary, of the limitations of expert evidence (see also the observations of Charleton J. in James Elliott Construction v Irish Asphalt  I.E.H.C. 208. It is a matter for the judge, not the witnesses, to determine the issues. The expert witnesses who testified in the High Court were indeed eminent political scientists. They testified honestly and in good faith. But the trial judge had regard to many of the points just identified above. He preferred the evidence of the respondents’ witnesses. He gave his reasons for this. He also found that the data available to the appellant’s experts was insufficiently relative and broad based to form conclusions upon which a court could determine the issues before it. I turn now to an outline of certain relevant parts of the background to this case.
The Events Prior to the Referendum
As is now well known, prior to the Referendum, the government published a booklet, together with other campaign material, both entitled “Children Referendum”. This material was disseminated by, or on behalf of the government, on foot of monies voted by the Oireachtas. A website was set up. There was an advertising campaign. The booklet was widely distributed to homes in the jurisdiction. The appellant now asserts that, given its widespread distribution and readership, the booklet itself and other government information sources, were such, to adopt the terminology of s.43 of the 1994 Act, as to “materially affect” the result of the Referendum as a whole. At points in the submissions, the appellant made the alternative case that the material, and other information aids, had, or may have, affected the result of the Referendum. The appellant says that the content of the website and the advertising was also aimed at the same objective.
The McCrystal Decision
In McCrystal, this Court granted a declaration to the effect that the State respondents had “acted wrongfully in expending or arranging to expend public monies 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”. That declaration was made two days prior to the holding of the Referendum. One of the appellant’s complaints is that, despite this declaration, the respondents nonetheless proceeded to hold the Referendum on the scheduled date, the 10th November, 2012.
The Size of the Majority
The amendment was passed by a very significant majority. The margin was, coincidently, the same as the plurality of voters who cast votes in favour of the Constitution itself on the 1st July, 1937, that is, 58% to 42%. The numerical majority in favour of the 2012 Referendum was some 180,000 voters. The size of a majority is not, of course, conclusive in the respondents’ favour. One can conceive of a circumstance where even a substantial majority could be achieved by unlawful means. But it is nonetheless an unavoidable obstacle in the petitioner’s path.
The Referendum Commission
The Referendum Commission provided a substantial degree of information to the public. The appellant questions why there was a separate government campaign at all? All the main political parties, and every member of the Dail and Seanad, save one, supported the referendum proposal. There had been considerable debate in the media outlets on issues raised by the proposal. Ironically, parts of the State’s own expert evidence was to the effect that the separate government information campaign had no appreciable effect at all. This last significant, but circular point, calls into question why the government expended public monies on an apparently ineffective campaign.
Areas of Agreement in the Evidence
The trial judge remarked that, to varying degrees, the experts on both sides accepted that, in the absence of evidence designed for the purpose; it was difficult, if not impossible, to assess the particular factors which determined the outcome. The experts also apparently agreed that, with hindsight, such a survey might have been possible to organise which would have significantly assisted the appellant’s case. The respondent’s case is that the Referendum Commission’s post-vote survey, which was sought to be relied on by the petitioner, failed to establish that the government information campaign had a material affect on the outcome. A question mark as to whether the particular survey data was useful for the purposes of these proceedings is unsurprising; the process was not intended for the purpose of a referendum challenge, but rather to determine the effectiveness of the Referendum Commission’s own, lawful, information campaign. The Referendum commission are in no way to blame for having designed a survey for the purposes of identifying whether public monies, which they lawfully expended, had, or had not, been well spent by them.
Relevant Provisions of the Referendum Act, 1994
It is now necessary to outline the relevant provisions of the Referendum Act, 1994. Section 40(1) of the Act of 1994 provides:
Section 42 provides:
Section 43 provides:
Section 48 provides:
Section 57 of the Act provides:
The Grounds Upon Which Leave Was Granted in the Petition
As can be seen from s.42 of the Act of 1994, the first step is an application for leave. The judge was satisfied that the totality of the evidence adduced established a fair, bona fide or serious issue to be tried. The effect of this finding was that he held, pursuant to s.42 (3)(a) of the Act, that there was prima facie evidence of a “matter” referred to in s.43, in relation to which the Referendum petition questioned the provisional referendum certificate concerned, and that, prima facie, the said “matter” was such as to affect materially the results of the referendum, as a whole. Here he was referring to the test referred to in s.43(1)(b) of the Act, that is to say, obstruction of, or interference with, or other hindrance of the conduct of the referendum.
The judge held that some parts of the evidence, taken in isolation, would not have justified a decision to grant leave. He referred particularly to that which had, in good faith, been provided to the court by the ‘fact and opinion’ witnesses referred to later. However he went on to observe that the issues, once raised, had to be considered in light of the determination by this Court that the McKenna principles had been breached; thus embracing a narrative covering the entire referendum campaign, and the government information campaign, including its three significant elements, comprising the government booklet, website, and advertising. Proceeding on the basis of the McCrystal decision, therefore, he reached the view that there was prima facie evidence justifying granting leave, namely, unconstitutional conduct by the Executive.
Having heard the totality of the evidence at the full hearing, the judge reiterated his conclusion that the appellant had raised a serious issue to be tried, that is, that the government information campaign had the potential to materially affect the result of the referendum, as a whole. However, having considered all the evidence, and applying the principles established by this Court in Hanafin, he was not satisfied that on the balance of probabilities the petitioner had established grounds sufficient to annul the referendum result.
It is abundantly clear that the trial judge considered, in great detail, the provisions and requirements of ss. 42 and 43 of the Act, in the context of the Hanafin judgments. One might surmise, therefore, that it was the absence of sufficiently cogent probative testimony, and the force of the rebuttal evidence which constrained the appellant, first, to challenge the constitutionality of the 1994 Act, and, second, necessarily, to challenge certain of the findings of this Court in Hanafin.
Fact and Opinion Witnesses
The first category of witnesses to whom I refer, with no disrespect, as ‘fact and opinion’ witnesses, were citizens, including the appellant, who told the trial court of their experience in the referendum campaign, the effect of the government information materials on themselves and others, and also the effect of the Supreme Court ruling.
These witnesses were the appellant herself; Mr. Michael Fitzgibbon; Mr. Nicholas Gargin; Mr. Daniel Ward; and Ms. Deirdre Ui Ghóibín.
Some of those witnesses, including the appellant herself, and Mr. Michael Fitzgibbon, intended to vote no and actually voted that way. The judge felt this in no way affected the truthfulness and credibility of their testimony. Both were actually campaigners for a ‘no’ vote. Thus, the government material did not affect them.
By contrast, Mr. Nicholas Gargin, a part-time student of Sports Management, said he had voted ‘yes’ in the referendum, and read the government booklet before voting. During his Christmas holidays, however, and after the poll, Mr. Gargin discovered that the Supreme Court ruling had been made. He testified that, had he found out about the McCrystal ruling before polling day, he would have been angry at the government’s behaviour, particularly so in the light of the Supreme Court judgments which he read. Had he known about the government wrongdoing he would have voted ‘no’ in the referendum.
Mr. Daniel Ward, a farmer on Arranmore, Co. Donegal, intended to vote ‘no’, but then read the booklet and was aware of the advertising by the government. He assumed the government would be impartial. When he read the materials he became uncertain as to whether he should vote ‘no’, and eventually decided not to vote at all.
Ms. Deirdre Ui Ghóibín was also a ‘no’ campaigner. She testified that family and friends with whom she discussed the matter were surprised at the government’s misconduct. She considered there was not enough factual information available in the government materials. She believed these materials had an influence.
But, the trial judge observed, Ms. Ui Ghóibín could not give any details of any specific discussion she had had about the booklet. In summary, therefore, and on the basis of the trial judge’s findings, just one of these witnesses intended to vote no, and instead did not vote at all.
The trial judge assessed their testimony in the context of the application for leave to bring the petition:
The trial judge drew legitimate inferences on the insufficiency of this testimony. His conclusions were in accordance with established principles, as identified in Hay v O’Grady. Specifically, it is noteworthy that, at least in the evidence of some of the factual opinion witnesses, there was an apparent “disconnect”. ‘Cause’ and ‘effect’ were not sufficiently established in order to demonstrate that the outcome of the referendum was “materially affected”, as a matter of probability. The referendum poll consisted of a total of many hundreds of thousands of voters. While the views of the non-expert witnesses were undoubtedly valid and honest, I do not think there is any legal flaw in the learned trial judge’s conclusion as to the effect of that category of testimony.
Mr. John Waters
Mr. John Waters, the well known writer and social commentator, submitted three affidavits in support of the petitioner. Because of his background and experience he comes into a rather different category. He is familiar with techniques of persuasion and public communications. He favoured a “no” result in the referendum. His sense was that, while the “no” campaign had started from a low base, the public mind had opened to the ‘no’ arguments in the last 10 days prior to polling day. His view at the time was that the contents of the booklet, which had a high level of credibility, were emotive, failed to have any regard for the arguments against the proposal, and failed to present the reality of the existing constitutional jurisprudence in respect of the rights of the child and the family.
The Judge’s Opinion on the Fact and Opinion Evidence
The trial judge was not persuaded that, in itself, any of this evidence, either in isolation or cumulatively, was sufficient to cross the leave threshold. He was entitled to so conclude. The statutory threshold of proof for leave must, necessarily, go considerably further than identifying the opinion of one person, even a highly experienced media commentator, on the affect of a campaign. A petitioner must show prima facie evidence that the result of the referendum, as a whole, was affected materially by the impugned misconduct. I turn next to the expert evidence. I should say here, I have had regard to the totality of the evidence, now summarised. It is noteworthy that no significant criticism is made of the judge’s description of the witnesses’ testimony
The Expert Evidence
Central to the petition were; the booklet compiled and distributed by the Department of Children & Youth Affairs; the website created and maintained by that Department; and an advertising campaign which was conducted on radio, television and in the print media. 2.026 million copies of the government booklet were delivered to all residential and non-residential addresses in the State between the 19th October and the 6th November, 2012. A further 18,500 copies were sent to public offices, such as county libraries, and 384 other locations for display. The High Court was told that the first draft of the booklet was prepared by a civil servant, and that it had gone through some 18 drafts before the final draft was ready for the printer. It is clear nonetheless that the pamphlet contained a significant number of assertions which contravened the McKenna principles. These included the usage of slogans such as:
Removing inequalities and adoption
Recognising Children in their own right.
The government booklet also contained statements of the law which were obviously incorrect. These statements all favoured the “yes” side. No statement favoured the “no” side. It appears that the final draft was not formally “legalled” by the Attorney General’s office before distribution. In the context of McKenna, this was a serious omission.
The Issue of “Affect”
At this point, it is useful to emphasise the extent to which what may be conveniently termed “affect” was fundamental to the petition claim. In the context of this case, “material affect” would mean identifying a probable connection, (in the sense identified in the test in O’Donnell J.’s judgment), between the impugned conduct and material, and, the result as a whole. There are some parallels here with the issue of causation, which is well recognised as being an important and complex dimension in tort law. The courts have adopted various approaches to address the issue of multiple causes. It is interesting to surmise the extent to which the judge might have concluded that the evidence suffered from a number of well recognised flaws similar to those arising in causation; including the distinction between cause and correlation, the temptation to confuse simultaneity of events with cause, and what is termed the “regression fallacy”, where predictions are made on exceptional results as if they were average. In law, if evidence is such that it is simply not possible to identify a direct relationship between an alleged wrongful “cause” and a consequent “effect”, then an action may fail. In the same sense, the primary evidential deficiency the judge identified was as to “material affect” on the result.
The Expert Evidence
For the purposes of this judgment I do not intend to traverse all the evidence, but rather some salient parts of it. Thereafter, I seek to assess the lawfulness of the judge’s inferences and conclusions.
The appellant’s case relied heavily on evidence from Dr. Michael Bruter, a leader in Political Science specialising in electoral psychology at the London School of Economics. He is an eminent scholar in the discipline. Dr. Bruter was originally retained by the appellant’s solicitor to provide an expert opinion as to:
Evaluating the nature of material provided by the Irish government to voters in the run up to the referendum, and whether it was likely to have influenced the casting of the votes in the Referendum;
Whether, following the decision of the Supreme Court in the McCrystal case on 8th November, 2012, delaying the vote would likely have resulted in a materially different result.
Dr. Bruter’s first retainer was, therefore, limited in scope; he was to assess the material provided by the Irish government to the voters. He was not asked to assess all the material which was supplied to voters; or the media coverage; the debates; commentary; or background history. He was not asked, either, to examine the way in which issues relating to the referendum came into the public domain. The judge found these were all highly relevant issues. So too was the question as to whether any of the material in question could actually be held to have influenced voters, rather than confirming them in points of view already held.
The scope of Dr. Bruter’s retainer did not, therefore, precisely fit the provisions of s.43 of the Referendum Act, 1994. To ask whether material provided by the government was “likely” to have influenced how votes were cast; is different from assessing whether the “result of the referendum, as a whole”, was “materially affected” by ‘misconduct’, in the words of s.43 of the Act. Dr. Bruter examined the possible effect of the materials supplied by the government by asking how that information “privileged a specific answer (yes or no)” from a “political behaviour point of view”. It will be noted, the evidence used a series of entirely legitimate terms in political science, but which did not correspond with the statutory tests.
Having identified the relevant ways in which the “yes” or “no” answer had been “advantaged”, the witness sought to assess whether this was “likely to have had a material impact on the way citizens voted”, considering the characteristics of the referendum.
Dr. Bruter pointed out that government material portrayed the proposal as one associated with multiple positive, and a complete absence of negative outcomes; that the campaign booklet was explicitly represented as stemming from, and/or legitimised by, non-partisan, neutral, and prototypically competent sources; that the narrative of the proposal was said to answer a possibly urgent need; and was expressed by the use of rhetoric which focused on emotion, and likely to induce a possible feeling of guilt amongst those not supporting the proposal. In short, he said, the material purported to be “neutral”, but was not.
The witness testified that the referendum was one of “low salience”, i.e. it addressed a question which was obscure to people, or about which they knew very little. He considered what are termed “cues” and “influences”. “Cues”, are understood as sources which collect, summarise, and report information on the pros and cons of a “yes” or “no” vote. Such sources might be regarded as neutral. Dr. Bruter accepted that political scientists were not agreed as to whether cues or influences matter most, but felt that the perception of whether the source of a cue was neutral, or partisan, had a major effect on the way voters would treat the information provided. A partisan source would likely be heavily discounted; by contrast, maximum credit would be afforded to information from a “neutral” cue source. He testified that the lower the salience of a referendum, the more likely it was that a voter would cast his or her ballot based on principles received or adopted through various cues. He concluded that, in this low salience referendum, voters would be highly dependent on information cues (in this case the government information); that the perceived nature of a source was a major determinant as to how influential the information would be; and, that, (in terms of the potentially strong impact of external inferences), in such a low salience referendum, any element which was likely to give additional credit or discredit to government would have a strong effect on the result.
The Referendum Commission Survey
As the statistical evidence caused much controversy at the trial, it is necessary to set out the framework. The Referendum Commission ordinary survey, entitled “Post Childrens’ Referendum Poll”, was prepared in January, 2013 by Martha Fanning and Ian McShane of “Behaviour and Attitudes” in conjunction with Murray Consultants. Both sides, but in particular the petitioner, sought to support their case by reference to the raw data. Dr. Bruter and Prof. Marsh prepared further reports on this, and submitted them to the court.
The Field Work
The field work for the survey took place from 8 days after the referendum starting on the 20th November to the 10th December, 2012. The sample was a statistically significant one, that is, 2,014 adults aged 18+ who were eligible to vote. A number of questions were put to the respondents, and the results were set out in tabular form.
Although the poll had not been designed to ascertain whether, or why, people voted “yes” or “no” in the referendum, the appellant sought to base a substantial part of her case on Dr. Bruter’s conclusions, reached following his analysis of the raw data. Professor Michael Marsh, Professor of Comparative Political Behaviour in Trinity College, Dublin, who testified for the State respondents, disagreed with Dr. Bruter’s methodology. The trial judge commented that the arguments advanced in this area were “detailed and technical and of rather narrow focus”. This was a considerable understatement.
Some of the expert testimony, presented at the hearing, touched on issues where, even among political scientists, there is no consensus. Dr. Bruter’s exercise must be seen as a response to Professor Michael Marsh’s testimony, whose evidence is described later.
In summary, Dr. Bruter sought to establish that a “link” could be shown between receiving the government guide and the actual yes/no vote. He prepared a report, based on the underlying data provided in the survey. This was divided into three parts. The first explained the application of the concept of “logistic regression” as a means of calculating the affect of various factors on a consequence; the second part explained the methodology used in his analysis; the third presented results and conclusions. The judge explained the methodology in this way at par. 107:
Dr. Bruter’s conclusion was that, overall, receiving the booklet made people over 9.3% more likely to vote ‘yes’. He recalculated these figures controlling for social class, and obtained the same results in all classes. He based his conclusions on the raw data of results obtained from answers to a number of questions in the poll such as “how did you vote in the referendum on children (?)”. This figure, if valid, could have been highly significant if it could truly be represented as switching voters when the result was 58% to 42%.
Professor Marsh did not disagree that a figure of 9.3% could be obtained from the un-weighted data presented. However, he carried out a similar statistical analysis, this time using a number of weightings, from the underlying raw data supplied by the pollsters in their working papers. He concluded that those who said that they received the government guide were statistically more represented, as having voted yes, than those who did not, but, on his calculation, the clear difference between the two was approximately 5.5%, as against 9.3%. Dr. Bruter accepted that one could apply weighted data to the calculation.
Professor Marsh, whose discipline is also voter behaviour, gave evidence on behalf of the State. He outlined the difficulties, recognised in the discipline of political science, in attempting to determine what influenced voters to exercise their franchise in a particular way. In his view, the absence of a properly designed study, implemented at the time of the campaign itself, rendered it impossible, post hoc, to assess definitively what factors determined the outcome; or to decide whether any discrete individual factors, such as the material published by the Department of Children, had an affect on the level of the “yes” or “no” vote.
At paragraph 102 of his judgment, the judge commented that the results indicated that 62% of those polled, who said they received the Referendum Commission Guide (total 921), voted “yes”, and 38% “no”; 64% of those who received the government guide (668) voted “yes” and 36% “no”; and 65% of those who received both guides (636) voted “yes” and 35% “no”; while 64% of those who received neither guide voted “yes” and 36% “no”. These results could suggest that there was, in fact, no difference in effect between people who received the government guide and those who did not. Dr. Bruter’s conclusion suggested “a statistically significant relationship between saying you received the Government Booklet and saying that you voted yes in the Referendum”. It is also clear that the respondents tended to exaggerate the ‘yes’ vote which was only 58%.
The Judge Prefers Professor Marsh’s Evidence to that of Dr. Bruter
The trial judge held that, were it to come to a choice between those two expert witnesses, he preferred the evidence of Professor Marsh. He considered that Dr. Bruter had over-interpreted such data as was available to him; and that the conclusions he sought to draw were not based on a firm material foundation. The trial judge’s inferences regarding “narrow focus” have been referred to. He considered the appellant’s testimony paid insufficient regard to the larger picture of the campaign. Moreover, he commented that the extrapolations from the survey were subject to a further criticism, to the effect that; while evidence might be gleaned indicating a correlation between “recall” of receiving the government booklet, and the way in which voters actually voted, such a process did not discharge the onus of proof to the requisite standard.
The Judge’s Conclusions
The earlier observations in the judgment on ‘material affect’ now come into play. The trial judge concluded that while the figures established some statistical correlation between receipt of the government booklet and voting “yes”, he was not satisfied that receiving the booklet meant that the recipient was thereby caused to vote yes. He commented that, notwithstanding receipt of the government booklet, most of the electorate did not vote at all, and that a substantial portion of those who received the booklet voted no. He was not satisfied that the figures established as a matter of probability that receiving the booklet caused an increase in the “yes” vote attributable to that factor, thereby affecting the result of the referendum as a whole.
The judge found “this analysis did not address the other influential factors identified as important by Prof. Marsh to the understanding of the casting of votes in the Referendum. Of course, this was largely due to the fact that the data in respect of these important factors does not exist as acknowledged by Dr. Bruter and Prof. Whiteley” (the expert, a witness referred to below). The judge expressed serious reservations as to the extent to which the exercise in which Dr. Bruter engaged could be relied on as producing probative evidence.
It was clear from the trial judge’s extremely detailed and comprehensive analysis that he closely followed the complex testimony. But he observed a series of weaknesses in the methodology. To take one, that Dr. Bruter included in the regression process a number of individual sources of “campaigning” influences. These included figures concerning the influence of variables such as communications seen, read or heard during the campaign, broken down into television advertising, television coverage, radio advertising, radio coverage, internet advertising and internet coverage. But the judge found on this:
As noted earlier, it later emerged that these figures related to coverage of the Referendum Commission’s materials and not the general Referendum Campaign.
Dr. Bruter concluded “The results confirm that even when controlling for all the additional variables .... identified, receiving the Government booklet made respondents consistently and significantly more likely to vote yes in the Children Referendum”.
In simple terms, therefore, no sufficient distinction could be drawn between the different sources of the material. The judge observed these conclusions were in the face of Professor Marsh’s testimony to the effect that caution should be exercised in using the results of the poll, in circumstances where the pollsters had not attempted to obtain a rounded view as to why the particular referendum outcome occurred. The pollsters were, rather, endeavouring to analyse the effectiveness of the Referendum Commission’s campaign. The purpose of the poll was to seek information about how the Referendum Commission’s booklet and other sources of information had been received. The survey was not concerned with, and did not take account of, other sources of information and their significance to the Referendum campaign, such as how voting intentions were affected by political allegiances or government popularity.
The judge pointed out that there was a debate, among political scientists, as to whether weighting was, or was not, appropriate in multivariate analysis.
The trial judge concluded at par. 121:
The judge held that Dr. Bruter’s process was insufficiently reliable to measure or take account of the reality of the affect of other factors in the course of the campaign. He noted that it was significant that, over the last thirty years, political and social discourse had been obliged to focus from time to time very heavily on issues concerning the welfare and rights of children. He continued:
The Houses of the Oireachtas, the Courts, the Churches and virtually every organ of the media have been concerned, if not convulsed, with a whole range of issues concerning child abuse, child protection, homelessness, custody and access issues between children and parents, the detention of children, education rights of children, and many other child and family centred issues. These matters clearly informed the debate that led to the formulation of the proposal to amend the Constitution. Understandably, neither Prof. Whiteley nor Dr. Bruter had any knowledge of this background.
I am not satisfied on the basis of the evidence of Dr. Bruter, and having heard the evidence of Prof. Marsh which I prefer, that his work on the “Behaviour and Attitudes” survey is sufficient to enable me to find for the petitioner on the balance of probabilities. 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.
This was a quite critical finding. Dr. Bruter’s evidence was critical to the petitioner’s case. A rejection of that evidence removed what may be accurately considered the main foundation stone of the case.
Professor Paul Whiteley
The appellant also relied upon the evidence of Professor Paul Whitely, Professor of Governance at the University of Essex. Professor Whitely testified that, if all political parties in the State were in favour of a particular aim, then people were likely to vote for it, taking their cue from the party which they supported; that people look for assistance from a truthful or trusted source when undecided and confused about a proposal; and that the information offered from a Department of State, having expertise in the area, would be influential, especially when invoking the opinion of other trusted sources.
Professor Whitely viewed the message carried by the government information campaign as drawing upon the emotions of the reader of the booklet. He referred here to the slogans and terminology described in the McCrystal judgments. His testimony was that the booklet did not contain any counter-arguments to the proposal. He accepted that the material would not influence those who had already made their minds up, or those who were uninterested in the issues. But, in his view, an undecided voter would attach more importance to the Department’s information than information coming from an obviously partisan group or party. Though he believed the information influenced the decision of voters, he acknowledged he could not give a precise assessment of the extent of that influence because the data was simply not available. He was, however, satisfied that biased information would help one side of the campaign, and, if one had data which measured the extent to which the people trusted their government at the time of the Referendum, and the extent to which they absorbed the material, then the extent to which it influenced the outcome would be ascertainable. However, the absence of a detailed study capable of giving a precise estimate of the extent of the influence of the general campaign did not prevent him from forming “a judgment of a rough kind about what the effects were”. He was clear, however, that it was not possible to determine the percentage affect of the booklet’s influence. He was satisfied its influence could not be proven either way. He confined himself to the view that the information may very well have been “quite influential”. He also believed that the general trend in the referendum campaign reflected trends seen in other referendums, that the “yes” campaign started out from a position of strength, but saw its support leak away during the course of the campaign. This led him to believe that a further negative trend would have continued to a somewhat greater extent had the government information campaign been neutral.
The Judge’s Findings on Professor Whiteley’s Evidence
McDermott J. commented that the fact that Professor Whitely laid emphasis on the people taking their “cues” from political parties was of particular significance. In the Children Referendum the unanimous support of all the political parties was, the judge concluded, indicative of the fact that the proposal must have resonated with the electorate, and would have been a significant contributory factor to the ‘yes’ vote. Having rehearsed his reservations on the inadequacy of the raw data, he found at par. 96:
Other Expert Evidence
The judge also considered evidence adduced on behalf of the appellant by Dr. Robert Heath, Associate Professor lecturing in Advanced Advertising Theory at Bath University in the United Kingdom. The gist of this evidence was as to the likely emotional influence of government advertising materials used during the course of the referendum. He testified that emotive non-verbal communication such as body language, tone of voice and emotional behaviour that accompanies and qualifies the communication may induce a favourable response; and that emotive communication in publicity material is processed automatically, instantaneously, and regardless of how much attention is paid to the verbal communication. Having examined the government booklet and the slogans used therein (described in the judgments in McCrystal), a television advertisement, and the printed advertisements; he concluded that each of these had a significant emotional aspect, and might have had a powerful influence on voter behaviour.
However, against this, the State relied on the evidence of Mr. John Fanning, a person of substantial experience in advertising and an Adjunct Faculty Member at University College Dublin Michael Smurfit Graduate Business School. Mr. Fanning testified that it was notoriously difficult to determine the effect of a marketing communications campaign. His evidence was that, in order to come to a definitive assessment on the impact of the material published by the Department, specific survey data, generated before, during, and after the Referendum campaign would be required. At minimum, this would require data on the degree of knowledge which potential voters had of the issues surrounding the Referendum, the degree of exposure they had to campaign literature and advertising from the Department and other sources, including traditional media, digital media and word of mouth comment. It would also be necessary to assess attitudes to the issues involved and the likelihood of voting. Mr. Fanning’s view was that the government material had minimal affect in influencing voters. He suggested the main reason for the lack of impact of this material during the campaign was its emphasis on public information rather than persuasion. It had a very conservative tone, and was conventional in design, style and layout. The fact that it included some phrases and images, the effect of which was to render it a breach of the fairness required by the McKenna principles, did not mean it was effective in terms of persuading voters to vote, and to vote yes.
The Judge’s Findings
The judge was satisfied that there was insufficient evidence available to allow any expert to reach the conclusion that the emotive material caused people to vote yes. In fact, he held that some of the material put in cross examination suggested that less than half of those who only received the Government guide voted ‘yes’, and that, in fact, a higher proportion of people who only got the Referendum Commission guide voted yes. He found, the absence of a multivariate analysis of other influences at work in the campaign made it difficult to determine a precise causal effect which the material had had, if any. In my view, there was sufficient material before the judge to reach this conclusion. I turn now to other aspects of the evidence.
With regard to the website, the judge pointed out that it had had just 23,309 “unique visitors” over the full length of its life, 10% of whom were outside the country. A “unique” visitor is a computer visitor who logs onto a website but may return to it on other occasions. 23,309 was well under 1% of the total population over 18 years of age. He noted the evidence of Mr. Roger Jupp, Vice Chairman of Millward Brown Lansdowne, the well-known public opinion consultants, who testified on behalf of the State, that there was no evidence, research based or otherwise, as to what people believed the website was telling them, either in favour of or against the proposal; or, whether it changed their opinions from one side to the other; or whether it reinforced their opinions.
The judge also assessed events following the McCrystal Supreme Court ruling. Counsel for the appellant contended that the ruling of the Supreme Court on the 8th November, 2012, two days before polling day (in contrast to 7 days in the Divorce Referendum), should have been followed by emergency legislation to postpone that polling day; that there was insufficient time to enable the terms of the declaration to be widely disseminated or to disabuse the electorate of the view that the booklet was unbiased. Counsel submitted that the then Minister for Justice, Equality and Defence had failed to issue an apology for the breaches when interviewed and requested to do so on RTE News; that the then Minister had said that the ruling only applied to the website and booklet, and did not apply to the advertising campaign, thereby further obfuscating its effect. Further, it was said that, when criticised in relation to the Supreme Court ruling, the Minister instead drew attention to the High Court ruling.
The appellant’s case, therefore, was that, because no legislation was enacted to postpone the polling day, “no” campaigners were deprived of a right to participate in a constitutionally compliant referendum process.
Dr. Bruter and Professor Whitely gave their views as to the likely benefits to the referendum process of postponement of the poll following the Supreme Court ruling. Dr. Bruter suggested that the referendum should have been delayed by a few days or three weeks. He later agreed with Professor Whitely that a delay of two weeks between the ruling and the polling day would have been sufficient in order to stabilise the electorate.
Against this, Professor Marsh considered that the negative message of the Supreme Court ruling to some extent cancelled whatever positive effect, if any, might have been gained by the government material. Over 61% of all adults were aware of the ruling, and 39% were unaware, according to the survey. This was adjusted and recorded as to 77% of the voters within the survey.
The Judge’s Findings on Post-Ruling Conduct
The judge described evidence as to the extensive national coverage of the McCrystal ruling. I summarise now his findings on the evidence. This included “heated exchanges” on RTE’s News at One programme, on the 8th November, between the then Minister for Justice, Equality and Defence, Mr. Shatter, the interviewer, Mr. O’Connell, and Mr. John Waters. The programme had an audience of 360,000 listeners. The ruling was the main topic on the RTE Radio programme Liveline, which had an extensive interview between the presenter, Mr. Joe Duffy, and Mr. Mark McCrystal. Liveline at this point had an average audience of 420,000 listeners. The ruling was the first item on the RTE Radio programme Drivetime. It was the first item on the Six One News with a film report on the judgment by the Legal Affairs Correspondent and a live interview between the Minister for Justice, Equality and Defence and Mr. Mattie McGrath T.D. This programme had an average viewership of in excess of 400,000. The ruling was given similar prominence in RTE television news at 9.00pm, which had an even larger audience of approximately 730,000. The RTE Primetime programme on the evening of 8th November, 2012, also covered the matter extensively. This had an average audience of approximately 350,000. The matter was covered in the TV3 programme Tonight hosted by Mr. Vincent Browne; Mr. Matt Cooper’s programme on Today FM, with an average listenership of 160,000; and the lunchtime programme, the Right Hook, on Newstalk, with an average audience of 130,000. On 9th November, the McCrystal ruling was again the lead story on Morning Ireland on RTE Radio featuring an interview between the Transport Minister, Mr. Varadkar T.D., and Mr. Malachy Steenson, on the issue. This programme has an average audience of 441,000 listeners.
The judge was not satisfied on the evidence that any Minister “showed disrespect” for, or sought to obfuscate the effect of the Supreme Court ruling. He viewed the materials and listened to the recordings produced to the court in respect of all of these. There was “robust” engagement between at least one of the interviewers and the Minister for Justice, Equality and Defence on the effect of the ruling on RTE News. He concluded that those people listening to the exchanges, or reading the newspaper reports of the ruling, could have been in no doubt as to the nature of the Supreme Court ruling.
The judge considered that the Supreme Court ruling in McCrystal had an immediate impact. He described it as short, focused and definitive, as a 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. Having viewed the material, he was satisfied that the Minister for Children had demonstrated respect for the Supreme Court judgment in its criticism of the unconstitutional expenditure of public funds, and her understanding that the government would fully comply with the judgment of this Court. He commented that, 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 the impugned materials. On the 8th November, the material on the website was edited by reference to the Supreme Court ruling. It was taken offline completely on the morning of 9th November. The Department cancelled 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. So too were radio and television advertisements scheduled to be broadcast on the 8th, 9th and 10th November. On the 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.
The Trial Judge’s Conclusions
The judge was not satisfied that there was any evidence upon which to base a claim that following the ruling the action of any Minister, or the government as a whole, contributed to the obstruction of, or interference with, the conduct of the Referendum. He found no conduct which was unconstitutional, or which interfered with the constitutional rights of citizens or the democratic process.
Finally, the judge expressed reservations as to the appellant’s contention that the government should have sponsored emergency legislation to ensure the postponement of the referendum. He commented that apart from the fact that the petitioner never sought any such pre-referendum relief, he doubted whether the jurisdiction of the court extended to a review of a government’s failure to introduce emergency legislation in order to postpone a Referendum (see Fitzgibbon v Ireland, Unreported, Supreme Court, 8th June, 2001, where the Supreme Court refused an application to restrain the holding of three referendums; where Keane C.J. thought it unnecessary to consider whether there might ever be “exceptional circumstances” in which the court could order the postponement of a Referendum poll, and considered that such circumstances would be “so rare and so exceptional that it is difficult to conceive them in practice”) (see also Slattery v An Taoiseach  1 I.R. 286).
Conclusion on a Survey of the Evidence
In summary, and on a brief survey of the lengthy evidence, therefore, the findings of fact made by the trial judge were supported by credible evidence (see Hay v O’Grady). His inferences were based on a body of credible testimony. His conclusions were based on that factual evidence. His reasons for preferring the evidence of the respondents’ witnesses over the appellant’s witnesses were explained and reasoned. If, therefore, the judge correctly applied the statute law to these facts and conditions, then it follows the petition cannot succeed. The evidence was not sufficient to surmount the threshold test set in O’Donnell J.’s judgment, with which I agree.
If, moreover, the Act of 1994 accords with the relevant provisions of the Constitution, then it follows that neither the petition nor the constitutional challenge can succeed.
The Constitutional Values Engaged
I wish to make a number of observations on the constitutional values engaged in interpreting the statute. I do not propose to refer to the provisions with the same degree of detail as O’Donnell J. I confine myself to pointing out that Article 46 of the Constitution lays down a clear framework for the amendment of the Constitution. We are dealing here with a process which is a bedrock of democracy. Under the Constitution the citizens of Ireland recognise themselves as a Sovereign People. The Constitution seeks to integrate and make real the concepts of identity, allegiance, and statehood, all of which have troubled the island, North and South, for many centuries. Amendment of the Constitution is not something to be lightly undertaken. The procedure whereby such amendment is to be effected is identified in Article 47. In my view, Articles 46 and 47 provide the main key to understanding how statute law should be interpreted. Both Articles are to be seen as mutually complimentary. Both inform all provisions of the Referendum Act 1994. Insofar as it is necessary to refer to them, I agree with O’Donnell J.’s analysis of Woodward v Sarsons & Sadlier [1874/1875] LR 10 CP 733, Morgan v Simpson  1 All England Reports 241, and his consideration of the statutory predecessor of the Referendum Act 1994. I would, however, add the following further observations, as to the role of the constitutional values engaged in the balancing process described fully by O’Donnell J.
Under the heading “Amendment of the Constitution”, Article 46 provides that any provision of the Constitution may be amended by way of variation, addition or repeal in a manner provided for in that Article (Article 46.1). A Bill, having been introduced into the Oireachtas, and then passed, or deemed to have been passed, by both Houses, is submitted by referendum to the decision of the People in accordance with, as Article 46.2 puts it, the law, “for the time being in force”, relating to the “Referendum”. This constitutional provision, therefore, allows for, and requires, a legal framework to be outlined in law for the amendment of the Constitution.
Articles 46.3 and 4 deal with the format and content of the Bill to be placed before the Oireachtas, and are not material to the appeal. The provisions prevent implicit amendment of the Constitution by statute. However, Article 46.5 provides that:
This section of the Article is phrased in strong, almost, imperative terms. Once the President is satisfied as to the conditions identified in Article 46 being complied with, the Bill is to be signed “forthwith”. The provisions which relate to the manner in which proposals to amend the Constitution are to be submitted to the People for approval are contained in the next Article.
Article 47.1 provides:
Thus, the status of a proposal to amend the Constitution is, itself, constitutionally designated and identified; once the proposal achieves the majority of votes cast at a referendum, it enjoys a presumption of constitutionality. It presumptively forms part of the Constitution itself, unless, it is demonstrated that there were breaches of the Referendum Act, 1994, which may be broadly referred to as “technical breaches” in the counting procedure in a constituency or constituencies; or, alternatively, more generally, conduct of such a blatant and serious nature, in breach of the McKenna principles, that the only proper remedy is to annul the referendum result.
Article 47.3 deals with the right of citizens to vote at a Referendum. Although not directly material to these appeals, it emphasises, in terms, the right of “citizens”, as part of their democratic right of participation in a sovereign State, to engage in the most fundamental legislative process of all, that is, the framing or amending of the Constitution. The right of citizens to vote in a Referendum, therefore, and the importance to be attached to the expression of that right of citizenship, is part of the essential character of the State itself.
Article 47.4 of the Constitution provides (emphasis added):
It is very clear, therefore, that Article 47.4 is expressed, in terms, to be “subject” to the other provisions of that Article.
The framework of reference, identified in the Constitution, does not simply set boundaries to interpretation; but rather, to my mind, flows into each statutory provision in the Act of 1994 addressing referendums, including, specifically, those the constitutionality of which is challenged in this appeal. The statute in question must be interpreted in a manner consistent with, both the spirit and letter, of Articles 46 and 47 of the Constitution itself.
The process of interpretation here will, of course, be guided by the actual language of the text of the Constitution, but rejecting excessive literalism. As both a political and legal charter of rights, the text of the Constitution may be interpreted in a broad and purposive manner. The Court is not engaged here in a process of statutory interpretation, such as might obtain in a Revenue statute. What is in question, rather, is the interpretation of an Act, passed by the Oireachtas, which itself is intended to embody and apply constitutional values in the very fundamental area of how the Constitution itself is to be amended.
While clearly there is a balance of rights and duties, at one level, it may be said that the appeals herein also involve the resolution of rights, that is, an individual right of the appellant, as contrasted to the “rights of the respondents”. That, however, is simplistic. The issue is considerably more nuanced. What is under discussion is a series of constitutional values of paramount importance, including the right of all citizens in voting at a Referendum. There is a respect due to the constitutionally identified “approval of the majority” of the people. In the hierarchy of constitutional values engaged in this case, that which ranks higher must be given due recognition. As the Preamble provides, ‘All powers, under the Constitution’ are to be exercised to promote the common good. Provided the referendum is conducted in accordance with the law, the decision on the priority of constitutional rights which is to be applied insofar as a conflict arises, is to be resolved by having regard to the terms of the Constitution itself, the political and ethical values contained in it, acknowledged by citizens of the State, and the main tenets of our system of constitutional parliamentary democracy (see judgments of Kenny J.; and Griffin J. in The People v Shaw  I.R. 1).
On its face, the vote which took place on the Children Referendum on the 10th November, 2012 was an expression of the will of the sovereign people of Ireland. The proposal, which was placed before the people, met with the approval of the people by a margin, by any standards considerable, of 58% to 42%, a total of some 180,000 people. This margin bears comparison with the narrow margin shown in the divorce referendum outlined in Hanafin, where the proposal put before the people was carried by a margin of just over 9,000 votes. We are not here dealing with a narrow margin.
In Hanafin the judgments lay emphasis on the proposition that great constitutional weight must be imparted to the will of the people. A democracy is constituted in the rule of the people by the people. Their will, as expressed by the Constitution of 1937, identifies the very framework and nature of the State, as well as identifying a series of fundamental rights and duties.
Opitz v Wrzesnewskyj
With regard to the process of interpretation, I refer now to one persuasive authority as a preface to a judgment of this Court which, to my mind, is directly on point. In Opitz v Wrzesnewskyj 2012 S.C.C. 55,  3 S.C.R. 76 (hereafter Opitz), the Supreme Court of Canada made a series of observations which, albeit in the context of an election petition rather than a referendum, are nonetheless useful in identifying how a court should strike the balance in interpreting statutes of this type which may be ambiguous, or difficult to understand.
Both the majority and minority opinions of that court placed central emphasis on the popular franchise, and the right to vote, as identified in the Canadian Charter of Rights. This was a “core constitutional value” in Canadian democracy. Accordingly, this consideration lay at the heart of how the electoral law in question was to be interpreted and applied. The majority judges (Rothstein and Moldaver JJ.) specifically pointed out that in the event that electoral legislation is found to be ambiguous, it should be interpreted in a way that is “enfranchising”. The judgment lays emphasis on the proposition that annulling an election would disenfranchise not only persons whose votes were disqualified, but every elector who voted; election administration is not designed to achieve perfection, but rather to come as close to the ideal of enfranchising all entitled voters as possible; the courts cannot demand perfect certainty, and rather must be concerned with the integrity of the electoral process. The majority pointed out at par. 50:
This overarching concern informs our interpretation of the phrase “irregularities .... ” that affected the result.
The similarity to our own legislation is self-evident. The Canadian Supreme Court also drew a distinction between what was described, historically, as a ‘strict procedural approach’ where all votes cast, pursuant to an irregular procedure, were held to be invalid; compared to a ‘substantive approach’ emphasising the substantive right of the electorate to vote.
I would agree with this approach to constitutionally based and framed legislation, which places a priority on substance over form, and which favours the right to vote and enfranchisement. Chief Justice McLachlin, in the minority, observed that election results benefit from a “presumption of regularity”, reflecting the fact an applicant bears the burden of establishing, on the balance of probabilities, that there were irregularities that affected the result of the election. She pointed out that election results should not be easily overturned.
Dillon-Leetch v Calleary
But, in fact, a judgment of this Court presaged, by some three decades, some of the observations just outlined.
I have already expressed agreement with O’Donnell J.’s observations regarding the application of a series of English and pre-independent statutes relied on by the appellant, and my endorsement of them. I would, however, wish to lay emphasis on passages from Henchy J.’s judgment in Dillon-Leetch v Calleary, (Unreported, Supreme Court 1973, No. 64, 25th July 1973), which so clearly express the principles which should apply as requiring more ample consideration. The appellant submits the passage which follows is obiter, relying on reasoning fully set out in O’Donnell J.’s judgment. It is said the observations are not material. Whether the passage is obiter or not it represents, to my mind, precisely the proper approach to interpretation of statutes of this Charter. The observations made apply a fortiori to the post-1937 Constitution Referendum Act, 1994 which enjoys a presumption of constitutionality.
The petitioner, Mr. Dillon-Leetch, brought his proceedings under the Electoral Act, 1923, seeking to invalidate the election result in the constituency of East Mayo in the 1973 General Election. The petitioner had been unsuccessful in the constituency. His petition was dismissed in the High Court. It was contended before this Court (Budd J., Henchy J., Griffin J.) that there had been a number of irregularities in the count, including a failure to seal the ballot box at various stages during the count, thereby impinging on the secrecy of the ballot.
Having referred to the findings of the Divisional High Court that there had been no such actual interference, and that the boxes had been kept under supervision at all times by members of An Garda Siochana, Henchy J. speaking on behalf of this Court, expressed himself this way in addressing the ‘principles’ to be observed:
Where, as in the present case, a Rule in one of the Schedules to the Electoral Act, 1923 has not been complied with and, as a result, the election is impugned on the ground that it has not been conducted in accordance with the principle of secretary, the election should not be upheld if the court is satisfied
[Here the judge was quoting from the Gill v Reid  3 LT 69, 85.]
Henchy J. continued:
If an election is upheld because although a breach of secrecy has, or may have, occurred, it could not have effected the result, the court will be overlooking a breach of the constitutionally recognised principle of the secrecy of the ballot in elections for Dail Eireann: see Article 16 S1, sub-section 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 the representatives in Dail Eireann: see Article 16, sub-section 1, sub-section 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 Article 16, S1, sub-section 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 which 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 Supermarket v Attorney General  I.R. 1.
Both Opitz and Dillon-Leetch, therefore, concern election petitions. But judgments resonate with the same themes and principles. The prioritisation of interpretative principles, expressed in both judgments, are the more apt when considering a vote in a referendum where the will of the People has been directly expressed as to how the Constitution should be amended.
To a large degree, the appellant’s submissions hinged on seeking to interpret the provisions of the Act of 1994 in a manner which is at variance with the principles just identified. A “literalist”, “formalist”, mode of interpretation is not generally appropriate in applying constitutional principles of this type to a statute addressing referendums. It is true that there are divergences in the terminology used by the drafters of the Act between ss. 42, 43, 48 and 57. They are considered in other judgments. It is said the term “result of a referendum” is used in s.48, whereas the result of a referendum as a whole is to be found in the first. This is true. But the terminology, insofar as it is divergent (although not significantly so), is not a justification for adopting an interpretative approach where the law is interpreted to fit the evidence, when, obviously, the converse must be the case. To succeed, the evidence must surpass the legal thresholds, which are, in fact, quite clear; either the requirements laid down by the statute are satisfied, or the appeal must fail, absent a finding of unconstitutionality of the Act of 1994. I turn next, and more briefly, to a consideration of some passages in Hanafin.
The judge applied the principles identified in Hanafin. The appellant’s case must hinge, therefore, on the proposition that Hanafin was wrongly decided in whole, or at least in part. What the Court is being asked to do is to set aside a decision of the full Supreme Court given in a fully argued case on consideration of all the relevant materials. While a decision is not to be overruled merely because a later court inclines to a different conclusion, this is, of course, subject to the consideration that “.... error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability and predictability should yield to the demands of justice.... ” (per Henchy J. in Mogul of Ireland v Tipperary NR Co. Co.  I.R. 260 at p. 272). On the other hand, the Court must bear in mind that what is at issue here is an asserted constitutional right, asserted in a matter of exceptional importance, that is, the operation of referendums. This Court has, in the past, been prepared to overrule earlier decisions which are at variance with fundamental constitutional principles (see Re Employment Equality Bill 1996  2 I.R. 321, and the dissenting judgments of Denham and Keane JJ in Society for the Protection of Unborn Children Ireland Limited v Grogan  4 I.R. 343 at pp. 371 and 388 to 389 respectively, and the judgment of Keane J. in Director of Public Prosecutions v Best  2 I.R. 17 at p. 62). The Court will, therefore, afford a greater degree of flexibility in an area where constitutional rights are enjoyed. It must be accepted that there is a need for judicial consistency in constitutional areas. This is, pre-eminently, a case where the Court is considering constitutional rights, not just of one citizen, but of all citizens. The Court is guardian of last resort of the Constitution. It would surely be entirely wrong for the Court to be obliged to perpetuate an erroneous interpretation of the Constitution, were such to be established.
In fact, as will be seen here, and in the other judgments herein, for the appellant to succeed, this Court would have to be persuaded that significant elements of Hanafin were incorrect. Implicit in the appellant’s case also is the need to depart from the observations made by O’Donnell J. in McCrystal, decided in 2012, as to the “different standard” applicable, seeking to annul a referendum result, as opposed to halting unconstitutional conduct prior to the vote.
The judge is criticised consistently, but inaccurately, for his use of terms such as “clear and cogent” to describe the evidence. There is a significant distinction between, on the one hand, a ‘standard of proof’, and on the other, the evidence which is necessary in order to reach that standard. It is by no means uncommon in other areas of the civil law that courts require “clear and cogent” evidence to establish matters to a degree of probability, especially when there is a duty on a court to identify what may be viewed by analogy as the causa causans and ‘effect’.
Onus of Proof and Standard of Proof
I now identify a number of points made by the appellant as to the manner in which the 1994 Act is to be applied. The view expressed here accords with those of the Chief Justice and O’Donnell J. on each of the points addressed by them. There is no doubt whatever that the conclusion of the court in Hanafin was that the onus of proof was on the petitioner. The standard of proof is the balance of probabilities. While the case was presented with great precision and elegance, in fact, no significant argument has been advanced to show that the judge’s findings were wrong. In Hanafin this Court held it would not lightly set aside what appeared, prima facie, to be an act of the sovereign people, unless what had happened was an express and obvious constitutional abuse, affecting the outcome of the referendum. It is quite clear that this observation was part of the ratio of the judgments. The issue is addressed in the judgments of Hamilton C.J. at p.425 of the report, to the following effect:
Consequently, the onus lay on the petitioner to establish on the balance of probabilities:-
The Chief Justice then turned to a consideration of two arguments advanced by counsel for the appellant in Hanafin at p.426. These were to the effect that:
On this, Hamilton C.J. observed at pp.426 to 427:
I cannot accept that the logic of the Act demands or requires that the concept of material effect be understood as equivalent to showing or establishing that the interference or wrongdoing was not trivial or inconsequential, or that the Act does not require the petitioner to establish that the wrongdoing complained of materially affected the result of the referendum as a whole.
Sections 42, 43 and 48, sub-s. 2 of the Act of 1994 refer to this requirement.
Under s. 42, sub-s. 3 of the Act, the High Court shall not grant leave for the presentation of a referendum petition unless it is satisfied that the matters complained of are such "as to affect materially the result of the referendum as a whole".
Under s. 43, sub-s. 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 one or all of the matters set forth at (a), (b), (c) and (d) of the sub-section.
Section 48, sub-s. 2 provides that:-
From a consideration of these sub-sections of the Act, it is clear that the Act provided and intended that the result of the referendum as a whole could only be questioned if it was established to the satisfaction of the court that the result was materially affected by the alleged wrongdoing.
The onus of so establishing rests on the petitioner who questions the result of the referendum.
This is not only required by the Act but is in accord with the constitutional right of the citizens to vote in a constitutional referendum and to have the result thereof accepted, respected and not interfered with unless it is established that such result was materially affected by alleged wrongdoing of such a nature and effect as to vitiate the referendum.
The questions of onus and standard of proof is also addressed specifically in Denham J.’s judgment to the same effect (see p.451) where, under the heading of Onus of Proof, she observed:
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.
Barrington J., in turn, made the following observations (at pp. 456 to 457 of the report):
In my opinion the position concerning the onus of proof is as follows. 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 satisfied that there is prima facie evidence of a matter referred 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 witnesses.
At this stage the petitioner has to attack a provisional referendum certificate purporting to record the decision of the people at a referendum. The situation is not unlike that which exists when the President refers to this Court a Bill which has been passed by both Houses of the Oireachtas. The Court pays the Oireachtas the courtesy of assuming that it has not violated the Constitution. It therefore presumes that the Bill is not repugnant to the Constitution until the contrary is clearly established (See In re Article 26 and the School Attendance Bill, 1942  I.R. 334). Likewise this Court will not lightly set aside what appears, prima facie, to be an act of the sovereign people.
Unless, therefore, what has happened is an express and obvious constitutional abuse affecting the outcome of the referendum, the onus of proof on the petitioner will be a heavy one. This does not mean that the onus is higher than the civil onus of proof but rather that the Court will be particularly vigilant in examining serious allegations.
These statements unequivocally set out both the onus and standard of proof. They form part of the ratio of the Hanafin decision.
I am unable to accept the proposition that the logic of Hanafin is that a petitioner’s case is unprovable, or that the evidence crossed the test threshold set out in O’Donnell J.’s judgment. To these I would add just a number of brief observations.
The Leave Threshold
It cannot be the law that the threshold for leave should be a low one, such as found in ex parte applications for judicial review. The clear import of Articles 46 and 47 of the Constitution expressed through the Act of 1994 is that a petition seeking to challenge the outcome of a referendum should not be lightly undertaken. It is not only legally appropriate, but constitutionally necessary, that in a leave application, a High Court judge should satisfy himself or herself that there is prima facie evidence of a matter referred to in s.43. The judge must be satisfied that the matter raised is such as would “affect materially the result of a referendum as a whole”. Whether or not an ex parte application is to be heard on notice is a matter which lies in the discretion of a High Court judge. However, it is not clear to me how the constitutional duty, which devolves upon a judge in interpreting sections 42 and 43 of the Act of 1994, could be discharged by the adoption of some form of low leave threshold. The test must be whether the matter raised would materially affect the result as a whole. This could not then involve establishing some minor irregularity, or infringement, or the views, no matter how well meant or whether formed in good faith; simply based on the views of some individual persons.
Furthermore, there is an irony which arises from the argument advanced by counsel for the appellant. It is suggested that, once a prima facie case is established, this should thenceforth be taken as effectively a “given”, and that the onus of proof should thereafter devolve upon the State to rebut the appellant’s case. But an application for leave may be made ex parte. Even if on notice, not all the evidence will be available. Such an interpretation would not be in accordance with the principles of fair procedures. It would run counter to the terms of the Act as outlined in s.43, which deals with the level of proof and content of proof necessary for a leave application; and to the provisions of Articles 46 and 47 of the Constitution, outlining the status which the courts must give to the approval of the People. A procedure of the type suggested, tantamount to a form of procedural ‘ratchet’, would itself be at variance with the constitutionally based principle of audi alteram partem.
It is suggested that there is support for the concept of a low threshold for leave in the judgment of Barrington J. in Hanafin. In Hanafin, Barrington J. stated at p.456:
The High Court may not grant such leave unless satisfied that there is prima facie evidence of a matter referred 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.
He continued at p.456:
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 witnesses.
Counsel for the appellant suggests that prima facie evidence should be seen as “simply evidence that is sufficiently strong to require an opponent to be called to answer it”. It is said that the High Court judge applied the leave test by holding that the appellant could only be granted leave following the production of both factual and expert witnesses, and that the guidance offered by Barrington J. had been ignored. I do not agree with this interpretation. What is necessary is that there should be prima facie evidence of material affect on the result as a whole (see sections 42 and 43 of the 1994 Act), in the sense identified in the judgments of this Court. No doubt, affidavit evidence may be sufficient to establish such evidence ex parte. But this cannot preclude the trial judge exercising his duty in order to establish whether that prima facie evidence crosses the necessary threshold of proof establishing material affect, to the standard which s.43 and indeed Article 47 of the Constitution requires. No such similar observation appears in any of the other judgments of this Court in Hanafin.
There is, too, further irony in the appellant’s position. The appellant herein was actually granted leave. Can it then be said that she can legitimately complain about the leave threshold, albeit in the context of a telescoped hearing. In my view, the appellant is seeking here to invoke jus tertii, a course of action deprecated by Henchy J. in Cahill v Sutton  I.R. 269.
It is said also that the learned trial judge’s approach failed to respect the distinction drawn in the language of the Act of 1994 between an application for leave to present a petition and the trial of the petition itself. The proof required in s.42(1)(b) regarding the leave application is that the High Court should be satisfied that the said matter is such as to “affect materially the result of the referendum as a whole”. It is argued that this suggests that the evidence must demonstrate a “potential” that the result of the referendum was affected. But this is not what the sub-section says. What is required is that the matter disclosed is such as to “affect materially” the result of the referendum “as a whole”. While it is evident that this language is derived from the consideration that referendum counts take place on a constituency by constituency basis, it is, nonetheless, a significant threshold, closer to the requirement disclosed in the planning statutes, requiring “substantial grounds”. I do not accept, therefore, that there is a significant contrast in language between the terms of s.42(1)(b) and s.43(1), requiring that at the trial it be shown “the result of the referendum as a whole was affected materially by the impugned matter”. It is said that s.43 requires “actuality”. I agree with the latter submission, which is consistent with the provisions of Articles 46 and 47 of the Constitution, and the respect due to the will of the people.
Linked with this submission is a further point. The appellant says that the trial judge drew an “irrational” distinction between the standard applicable at the leave and trial stage. It is said that having adopted an unduly high standard of proof at the leave stage, akin to that implied in s.43(1), and having accepted that the appellant had overcome the high threshold of demonstrating a fair, serious and bona fide issue, he ought to have concluded that the appellant had also met the lawful standard applicable to the trial of the Petition. In the course of argument, this submission acquired greater significance, in that, counsel for the appellant sought to argue that, accepting that the leave threshold was “high”, once that threshold was passed the burden of proof fell upon the respondents.
One hypothetical situation demonstrates the fallacy of this submission. It is suggested that there should be a “lower” threshold. But this threshold might actually be passed on an ex parte leave application, where a respondent has no right to be heard. But such a course of action could not be in accordance with the principle of fair procedures, still less the provisions of the two referendum Articles in the Constitution.
The Standard of Proof Applied
It is suggested that the standard of proof imposed by the statute was “impossible”. I do not agree. In directing himself on the law, the judge used phrases, such as “a decisive” impact; or that the conduct “caused” recipients to vote “yes”. Here, referring to the evidential burden, the judge was saying that the appellant was required to inform the court “authoritatively” of the affect of the other elements of the referendum campaign; to produce “clear and cogent evidence” which was based, or might have been based, on a “multivariate” analysis of other influences at work in the referendum campaign, apart from the unconstitutional conduct and/or part of it. The standard of proof and the possible means to surpass it, are outlined in ‘the Test’ referred to on a number of occasions
Reverse Onus of Proof?
I reject the submission that the circumstances are such that it would be necessary to reverse the onus of proof as a matter of fundamental fairness to the appellant deriving from the observations of this Court in Hanrahan v Merck Sharpe & Dohme Ireland Ltd.  ILRM 629, which held the exception to prove all the necessary ingredients of a tort may be raised where a particular element of tort lies, or is deemed to lie, pre-eminently within a defendant’s knowledge; in which case the onus of proof as to that matter passes to the defendant. The rationale in such cases lies in the fact that it would be palpably unfair to require a plaintiff to prove something beyond his or her reach, and which fact is peculiarly within the range of a defendant’s capacity of proof (see Henchy J.’s judgment in Hanrahan, at pp. 634 – 635).( Hanrahan Unverified)
However, it is important to emphasise that Henchy J. then went on to state that mere difficulty of proof is insufficient (ibid at 635, Hanrahan unverified):
There are of course difficulties facing the plaintiffs in regard to proof of .... but mere difficulty of proof does not call for a shifting of the onus of proof.... The onus of disproof rests on the defendant only when the Act or default complained of is such that it would be fundamentally unjust to require the plaintiff to prove a positive averment when the particular circumstances show that fairness and justice call for disproof by the defendant.
It is not sufficient that a matter be within the exclusive knowledge of the defendant, but also that the matter in question be “peculiarly within the range of the defendant’s capacity of proof” (per Hardiman J., Rothwell v Motor Insurers Bureau of Ireland  1 I.R. 268).
In my view the learned trial judge correctly identified the necessity for “authoritative”, “clear” and “cogent” evidence. As Henchy J. pointed out in Hanafin, many cases arise in the law of tort, and elsewhere, where it is necessary to segregate the probative evidence so as to clearly demonstrate cause and effect, or in this case, cause and material effect. What was lacking in this case was sufficient probative evidence. That is not to say that such evidence is impossible to obtain.
The material published was in breach of the McKenna principles. However, it was obviously necessary to have regard to the entire scenario, background and debate in order to determine whether or not unconstitutional activities had the affect contended for. The application of this standard was no more than that required in a civil action. Were it to be the case that the campaign breaches alone, as identified in McCrystal, as distinct from the electronic media, social media, the views of peers and lawful political activity, not to mention the entire political background, had materially affected the result of a referendum, then a petitioner would undoubtedly have a stronger case. The burden imposed, by the statute, even bearing in mind the presumption of constitutionality in Article 47, is not insurmountable.
There is no warrant to be found in any relevant section of the Referendum Act, 1994 for reverse burden of proof. A fortiori, imparting a constitutional interpretation to each section, no such warrant is discernable, nor can it be “read in” to the Act. To do so would be to invert the constitutional values which are engaged here. Moreover, this must be seen in the context of a situation where this Court in McCrystal has already, in protection of the McKenna principles, granted a declaration. The remedy which the appellant seeks is that the outcome of the referendum be annulled. It is difficult to avoid the conclusion that the interpretation which is sought is dictated by the remedy which is urged, in light of insufficient evidence.
An Inquiry Process?
It is said an inquiry process should have been adopted. First, I do not believe that this, in fact, would address the appellant’s concern. What was ultimately fatal to the appellant’s case at trial was the deficiency in evidence to prove the case in accordance with law, not the procedure. It is submitted that the requirement for an inquisitorial procedure is derived from some of the judgments in Hanafin. In my view, such observations are to be seen in the context of the particular facts of Hanafin where the appellant’s evidence at trial was simply insufficient to discharge the onus of proof; and where the divisional court felt justified in granting a direction at the conclusion of the petitioner’s case; and where, as a consequence, it was unnecessary for the State to go into evidence at all in order to justify its conduct. Neither judgment proposes that an enquiry process is mandatory. The judgments of Hamilton C.J. and Barrington J. in Hanafin do not support this proposition. It is true that two members of the Court in Hanafin do raise the question of an enquiry being an appropriate form of procedure. However, this was in the context of what occurred in the divisional court, where, at the end of the petitioner’s case, a direction was granted. To my mind, neither judgment expresses the definitive view that an enquiry is appropriate. I believe this observation arises in the context of the facts of Hanafin. I do not think that any proposition to that effect is supported, either by the text of the Act of 1994, or Articles 46 and 47 of the Constitution.
In my view, the learned trial judge was justified in reaching the conclusions which he did on the post-ruling conduct. In fact, the appellant has advanced no legal or evidential basis for the submission that there was unlawful “post-ruling conduct”. A breach of a constitutional right is not established by identifying quotations from a number of government ministers. No issue arose, in these statements, regarding public expenditure, or breach of the McKenna principles thereafter. It is said that the short time-elapse meant that those opposed to the referendum proposals were deprived of their rights. The remedy which is proposed is that courts should have directed the government to introduce emergency legislation to postpone the referendum following McCrystal. The judge made a series of findings of fact and I would not interfere with them.
The Constituency Requirement
What is termed the “constituency requirement” raises little difficulty. Under s.47 and s.48 of the 1994 Act a court is empowered to direct that all of the votes taken in a particular constituency, or a specific parcel of votes, may be counted again. The appellant submits that an absence of a specific provision in the Act allowing for a global recount gives rise to a “frailty”. It is true that in Hanafin Blayney J. observed that the 1994 Act did not “appear to be designed to deal with a circumstance which could affect the poll in every constituency”, and the constituency requirement created a “special problem for the petitioner”, and was “inappropriate when the circumstance is something which affects the referendum in every constituency”  2 I.R. 321 at p.444.. However, this observation was not part of the ratio decidendi in Hanafin; in fact, the entire thrust of that judgment, in particular the judgment of the Chief Justice, is that the only manner in which a McKenna breach can be challenged is through the 1 Act of 1994. But clearly, as the judgments of this Court in Hanafin bear out, this does not prevent a court ordering a recount in each or all constituencies in the event that a McKenna breach is shown on a national scale. Again, this could only arise in the most exceptional circumstances, where the breach was very clear, to the extent that a question of mala fides on the part of the State arose. I would, therefore, reject the appellant’s submissions at this point. In fact, the learned trial judge held to the contrary in the petition and plenary proceedings, that is, in favour of the appellant.
I would dismiss both the petition and the plenary proceedings. I would express hope that these complementary judgments, of a unanimous court, which address different aspects of the relevant issues, and arrive at a common conclusion, will reduce the risk of the issues which arose here arising in the foreseeable future.
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