Another More Serious Problem in the Government's Way
30/03/2023 09:41 Filed in: referendum
It is good to know that the Government still has some capacity to listen to criticism. That was a the original feeling I had after the conclusion of my campaign on the ‘Flawed Wording’ of the Same-Sex Marriage amendment – wording that is now changed and was so announced by the Taoiseach on Tuesday.
However, my confidence in the capacity of our senior politicians to listen to criticism was short-lived. Within a day I received a letter from Eamon Gilmore, former leader of the Labour Party, telling me that the Oireachtas Translation Service had reassured the Government that my concerns “are unfounded and that the wording, as originally published, clearly allows both opposite-sex couples and same-sex couples to marry”. Since when did this “Service” manage constitutional texts or advise the Government on language matters?
So why was the wording changed? It was changed so that the electorate, according to Mr Gilmore, would have “absolute confidence”. The concept of such confidence, in respect of our politicians, has long since passed into history, becoming an absurdity.
Vesting such confidence in the Oireachtas Translation Service is another matter, but is still responsible for a dubious proposed amendment. A spokesperson for that body of translators, Rannóg an Aistriuchain, quoted by Harry McGee in the Irish Times (21 February), revealed to countrywide astonishment that the “official” Irish language was a translation from the English. At one fell swoop confidence in the language, traditionally seen as representing the inner heart of the country’s voice, was swept away and became mere translation.
What I had done, quite unnecessarily according to Eamon Gilmore, highlights a few important issues before which the “flawed wording controversy” shrinks to very modest proportions. The malaise is much deeper than that. It could well cripple the ham-fisted attempts of the Government so far because of a much more serious legal process that has yet to be resolved.
This is the Jordan case. It was heard last December by a full bench of seven judges in the Supreme Court. A decision is still awaited.
Joanna Jordan petitioned the Supreme Court over the Children’s Rights Referendum on the grounds that the Government’s information campaign, continued up to the eve of the poll, was flawed. It did not follow the “Code of Good Practice in Referendums”, adopted by an advisory body, the Council of Europe, whose advice required a guarantee of equal opportunity “for the supporters and opponents of the proposal being voted on”. The Government ran a misleading campaign and the question at the heart of Mrs Jordan’s pleadings was whether or not this polluted the result and invalidated it. Proof of such pollution is hard to find unless bias on the part of those administering the campaign can be clearly demonstrated, and the onus put on them rather than on the plaintiff to show that they obeyed the terms of the Referendum Act. The Act has already been polluted by the removal from it, some years ago, of the need to observe equally the coverage of both sides in the question being put to the people. As I show in this article those “equality” days are far behind us. We have corrupted the process.
If “the law for the time being in force relating to the Referendum”, i.e. the Referendum Act, is found to be unconstitutional in part, it may well be that, not only the Childrens' Referendum but also the outcome of the Marriage and Presidential Referendums will be put in doubt, because they will not have been submitted to the people in accordance with a valid referendum law.
Did it not occur to any of our legislators that initiating two referendum Bills at this time is a serious breach of the separation of powers vis-à-vis the Supreme Court, which is currently deliberating on the constitutionality of the Referendum Act?
The problem is substantial and serious. Article 46, section 2 of the Constitution says that “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.”
A degree of evident madness has ordained otherwise, risking the possibility that two more referendums could also fall foul of an unconstitutional Referendum Act. It would also be a highly improper act of disrespect for the independence of the Supreme Court to appear to heap pressure on the judges to uphold the constitutionality of the legislation by presuming on a particular outcome to their deliberation. As a piece of ineptitude this would diminish the flawed wording issue to quite modest proportions.
As a result, the financial, political and democratic cost of three wasted plebiscites would occur and this would be enormously costly. As to the national embarrassment of it, Mr Eamon Gilmore would be sorely stretching his command of language to explain it away.
So far, though without much thought or intelligence, the Marriage Referendum has attracted a cosy consensus among the political classes while at the same time they appear incapable of addressing properly the key issues of constitutional change. Is it any wonder that the electorate are so disillusioned with their politicians?
One might say that there are many other unforeseen and unintended consequences of this rushed referendum. These have been partially outlined in my articles and in the Private Study Paper which first examined the flawed wording of the proposed amendment, copies of which I circulated to all deputies and senators.
It is surely clear that the Same-Sex Marriage referendum should not be held until the issue of the constitutionality of the Referendum Act 1998 (which is currently “sub judice”) is decided. The Supreme Court in the Jordan petition on the 2012 Children’s Rights referendum have heard the pleadings but not yet issued their judgment.
Our problem lies in the fact that the Oireachtas is seeking to put before the people for approval and decision three Bills at a time when the people may still have to wait for a Referendum Act that is clearly and unequivocally constitutional before they can decide whether they wish to amend the Constitution or not. If the Supreme Court should find that a section of the Referendum Act under which the Children’s Rights referendum was held – and under which the proposed Same-Sex Marriage referendum in May will be held – is unconstitutional, then the referendums fall and will have to be held again.
A seven-judge Supreme Court spent five days hearing the Jordan petition in mid-December. Joanna Jordan petitioned the Supreme Court over the Children’s Rights Referendum on the grounds that the Government’s information campaign, continued up to the eve of the poll, was flawed. It did not follow the “Code of Good Practice in Referendums”, adopted by an advisory body, the Council of Europe, whose advice required a guarantee of equal opportunity “for the supporters and opponents of the proposal being voted on”.
The Government ran a misleading campaign and the question at the heart of Mrs Jordan’s pleadings was whether or not this polluted the result and invalidated it. Proof of such pollution is hard to find unless bias on the part of those administering the campaign can be clearly demonstrated, and the onus put on them rather than on the plaintiff to show that they obeyed the terms of the Referendum Act. The Act has already been polluted by the removal from it, some years ago, of the need to observe equally the coverage of both sides in the question being put to the people. As I show in this article those “equality” days are far behind us. We have corrupted the process.
It is surely folly and presumptuously arrogant of the Government to hold another referendum before the Court has given its judgement on whether the Jordan petition is to be rejected or upheld, including the issue of whether the section of the Referendum Act that has been challenged is constitutional or not.
If the Supreme Court finds that it is not, or that a Section of the Referendum Act is itself unconstitutional, then the Same-Sex Marriage referendum result will be open to challenge as unconstitutional until that flaw in the Referendum Act has been remedied. ***
The section of the Referendum Act which is under constitutional challenge is that which holds that a referendum result may be declared invalid if the conduct of the referendum has been marred by illegal or unconstitutional behaviour such as to “materially affect” its result. The likelihood of this, on past experience, is embarrassingly strong. In the case of the 2012 Children’s Referendum the illegal behaviour was on the part of the Government itself rather than of individual citizens.
In its 2012 judgement in the McCrystal case the Supreme Court found, on the eve of the Children’s Referendum, that the booklet which the Government distributed to all households in the State as part of its own “information campaign” (which was run separately from, and in parallel to, the Referendum Commission’s in formation programme) was significantly misleading and one-sided. Also, it contained errors of fact. This aspect of the Government’s information campaign was therefore illegal and unconstitutional.
Mrs Jordan contends in her petition that that misconduct “materially affected” the result of the Children’s Rights referendum – this test is mentioned in the Referendum Acts as justifying a petition to the effect that a referendum result is invalid.
Mrs Jordan’s legal team has contended that if the Supreme Court holds - as it did in the 1995 Hanafin appeal against the result of that year’s Divorce Referendum - that it is impossible to show how anyone voted in a referendum or how any such misconduct can affect the result, then that provision of the Referendum Act setting out this test is itself unconstitutional and should be struck down, rendering referendums held under it invalid until that unconstitutionality is repaired.
The Supreme Court may say that the result of the Children’s Referendum is valid and should stand, and that there is no need to alter the Referendum Act. That is how constitutional law-making and amending works. But surely the Same-Sex Marriage Referendum should not be held or advanced in any way until this issue has been decided?
However, my confidence in the capacity of our senior politicians to listen to criticism was short-lived. Within a day I received a letter from Eamon Gilmore, former leader of the Labour Party, telling me that the Oireachtas Translation Service had reassured the Government that my concerns “are unfounded and that the wording, as originally published, clearly allows both opposite-sex couples and same-sex couples to marry”. Since when did this “Service” manage constitutional texts or advise the Government on language matters?
So why was the wording changed? It was changed so that the electorate, according to Mr Gilmore, would have “absolute confidence”. The concept of such confidence, in respect of our politicians, has long since passed into history, becoming an absurdity.
Vesting such confidence in the Oireachtas Translation Service is another matter, but is still responsible for a dubious proposed amendment. A spokesperson for that body of translators, Rannóg an Aistriuchain, quoted by Harry McGee in the Irish Times (21 February), revealed to countrywide astonishment that the “official” Irish language was a translation from the English. At one fell swoop confidence in the language, traditionally seen as representing the inner heart of the country’s voice, was swept away and became mere translation.
What I had done, quite unnecessarily according to Eamon Gilmore, highlights a few important issues before which the “flawed wording controversy” shrinks to very modest proportions. The malaise is much deeper than that. It could well cripple the ham-fisted attempts of the Government so far because of a much more serious legal process that has yet to be resolved.
This is the Jordan case. It was heard last December by a full bench of seven judges in the Supreme Court. A decision is still awaited.
Joanna Jordan petitioned the Supreme Court over the Children’s Rights Referendum on the grounds that the Government’s information campaign, continued up to the eve of the poll, was flawed. It did not follow the “Code of Good Practice in Referendums”, adopted by an advisory body, the Council of Europe, whose advice required a guarantee of equal opportunity “for the supporters and opponents of the proposal being voted on”. The Government ran a misleading campaign and the question at the heart of Mrs Jordan’s pleadings was whether or not this polluted the result and invalidated it. Proof of such pollution is hard to find unless bias on the part of those administering the campaign can be clearly demonstrated, and the onus put on them rather than on the plaintiff to show that they obeyed the terms of the Referendum Act. The Act has already been polluted by the removal from it, some years ago, of the need to observe equally the coverage of both sides in the question being put to the people. As I show in this article those “equality” days are far behind us. We have corrupted the process.
If “the law for the time being in force relating to the Referendum”, i.e. the Referendum Act, is found to be unconstitutional in part, it may well be that, not only the Childrens' Referendum but also the outcome of the Marriage and Presidential Referendums will be put in doubt, because they will not have been submitted to the people in accordance with a valid referendum law.
Did it not occur to any of our legislators that initiating two referendum Bills at this time is a serious breach of the separation of powers vis-à-vis the Supreme Court, which is currently deliberating on the constitutionality of the Referendum Act?
The problem is substantial and serious. Article 46, section 2 of the Constitution says that “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.”
A degree of evident madness has ordained otherwise, risking the possibility that two more referendums could also fall foul of an unconstitutional Referendum Act. It would also be a highly improper act of disrespect for the independence of the Supreme Court to appear to heap pressure on the judges to uphold the constitutionality of the legislation by presuming on a particular outcome to their deliberation. As a piece of ineptitude this would diminish the flawed wording issue to quite modest proportions.
As a result, the financial, political and democratic cost of three wasted plebiscites would occur and this would be enormously costly. As to the national embarrassment of it, Mr Eamon Gilmore would be sorely stretching his command of language to explain it away.
So far, though without much thought or intelligence, the Marriage Referendum has attracted a cosy consensus among the political classes while at the same time they appear incapable of addressing properly the key issues of constitutional change. Is it any wonder that the electorate are so disillusioned with their politicians?
One might say that there are many other unforeseen and unintended consequences of this rushed referendum. These have been partially outlined in my articles and in the Private Study Paper which first examined the flawed wording of the proposed amendment, copies of which I circulated to all deputies and senators.
It is surely clear that the Same-Sex Marriage referendum should not be held until the issue of the constitutionality of the Referendum Act 1998 (which is currently “sub judice”) is decided. The Supreme Court in the Jordan petition on the 2012 Children’s Rights referendum have heard the pleadings but not yet issued their judgment.
Our problem lies in the fact that the Oireachtas is seeking to put before the people for approval and decision three Bills at a time when the people may still have to wait for a Referendum Act that is clearly and unequivocally constitutional before they can decide whether they wish to amend the Constitution or not. If the Supreme Court should find that a section of the Referendum Act under which the Children’s Rights referendum was held – and under which the proposed Same-Sex Marriage referendum in May will be held – is unconstitutional, then the referendums fall and will have to be held again.
A seven-judge Supreme Court spent five days hearing the Jordan petition in mid-December. Joanna Jordan petitioned the Supreme Court over the Children’s Rights Referendum on the grounds that the Government’s information campaign, continued up to the eve of the poll, was flawed. It did not follow the “Code of Good Practice in Referendums”, adopted by an advisory body, the Council of Europe, whose advice required a guarantee of equal opportunity “for the supporters and opponents of the proposal being voted on”.
The Government ran a misleading campaign and the question at the heart of Mrs Jordan’s pleadings was whether or not this polluted the result and invalidated it. Proof of such pollution is hard to find unless bias on the part of those administering the campaign can be clearly demonstrated, and the onus put on them rather than on the plaintiff to show that they obeyed the terms of the Referendum Act. The Act has already been polluted by the removal from it, some years ago, of the need to observe equally the coverage of both sides in the question being put to the people. As I show in this article those “equality” days are far behind us. We have corrupted the process.
It is surely folly and presumptuously arrogant of the Government to hold another referendum before the Court has given its judgement on whether the Jordan petition is to be rejected or upheld, including the issue of whether the section of the Referendum Act that has been challenged is constitutional or not.
If the Supreme Court finds that it is not, or that a Section of the Referendum Act is itself unconstitutional, then the Same-Sex Marriage referendum result will be open to challenge as unconstitutional until that flaw in the Referendum Act has been remedied. ***
The section of the Referendum Act which is under constitutional challenge is that which holds that a referendum result may be declared invalid if the conduct of the referendum has been marred by illegal or unconstitutional behaviour such as to “materially affect” its result. The likelihood of this, on past experience, is embarrassingly strong. In the case of the 2012 Children’s Referendum the illegal behaviour was on the part of the Government itself rather than of individual citizens.
In its 2012 judgement in the McCrystal case the Supreme Court found, on the eve of the Children’s Referendum, that the booklet which the Government distributed to all households in the State as part of its own “information campaign” (which was run separately from, and in parallel to, the Referendum Commission’s in formation programme) was significantly misleading and one-sided. Also, it contained errors of fact. This aspect of the Government’s information campaign was therefore illegal and unconstitutional.
Mrs Jordan contends in her petition that that misconduct “materially affected” the result of the Children’s Rights referendum – this test is mentioned in the Referendum Acts as justifying a petition to the effect that a referendum result is invalid.
Mrs Jordan’s legal team has contended that if the Supreme Court holds - as it did in the 1995 Hanafin appeal against the result of that year’s Divorce Referendum - that it is impossible to show how anyone voted in a referendum or how any such misconduct can affect the result, then that provision of the Referendum Act setting out this test is itself unconstitutional and should be struck down, rendering referendums held under it invalid until that unconstitutionality is repaired.
The Supreme Court may say that the result of the Children’s Referendum is valid and should stand, and that there is no need to alter the Referendum Act. That is how constitutional law-making and amending works. But surely the Same-Sex Marriage Referendum should not be held or advanced in any way until this issue has been decided?