Legal test of result unlikely to succeed

Mon, Nov 12, 2012, 00:00

CHALLENGE:A legal challenge to the result of the referendum while possible is unlikely to be successful, constitutional law experts have said.

They have also called for the timely introduction of legislation required by the amendment. The 31st amendment to the Constitution was passed by 58 per cent, with a third of those eligible casting a ballot.

Any challenger to the result must lodge a petition within seven days of publication of the amendment certificate in Iris Oifigiúil, the State gazette.

The Supreme Court decision last week, that the Government campaign on the referendum was in breach of the McKenna judgment because it used public funds for a one-sided campaign, has offered potential grounds for a petition to overturn the results. However, it would require a challenger to prove the Government’s campaign had a material impact on how people voted, which would be difficult.

Constitutional expert Paul Anthony McDermott BL said it was not possible, because of the secrecy of the ballot box, to question people about the way they voted. Opinion polls would have to be relied on.

If it could be proved that most people did not make up their minds until they received the Government literature and were influenced by it, a credible challenge might be brought. However, overturning a referendum result would be “a nuclear remedy”.

Mr McDermott said the passing of the amendment created “a bit of uncertainty” for those working in the childcare area, which had been “operating smoothly to protect children”. They would have to work out if it affected the way things were done.

Oran Doyle, barrister and law lecturer at Trinity College Dublin, said while a challenge was possible it was unlikely to be successful. The courts tended to take the view that “the people have spoken”.

He raised concerns about a “lacuna” he believes has been created by the passing of the referendum. The inclusion of the phrase “as provided by law” in article 42A.2.1, which deals with State intervention in upholding the rights of the child, could cause difficulties.

“It could mean interventions previously allowed in the courts on the basis of article 42.5, which has been removed, could not be allowed until appropriate legislation is introduced. This could mean if a hospital went to court for an order to provide a blood transfusion to a child where parents withheld consent, the court might not have the power to make such an order”.


Mr Doyle urged the Government to bring in the necessary legislation as soon as possible.

Fergus Ryan, author and law lecturer at Dublin Institute of Technology, also said it would be safest if legislation was passed so there was “absolutely no doubt” about such orders. On a potential challenge to the result, Mr Ryan said the Government campaign could prove “problematic”. While the Government divorce campaign, which resulted in the McKenna case and a subsequent challenge to the referendum results, had clearly been for a Yes vote, this campaign had purported to be presenting its information as neutral. Yet the Supreme Court found it was not. “In certain respects this campaign might have been more influential because it was put forward as neutral.”