135-18 AFL.doc135-18 Rspndts Notice.doc
THE SUPREME COURT
IRELAND, THE ATTORNEY GENERAL AND THE REFERENDUM RETURNING OFFICER
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.
ORDER SOUGHT TO BE APPEALED
|COURT: Court of Appeal|
DATE OF JUDGMENT OR RULING: 27th August 2018
DATE OF ORDER: 27th August 2018
DATE OF PERFECTION OF ORDER: 27th August 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 31st August 2018 AND WAS IN TIME.
1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration)  IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
2. Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
3. In that context it should be noted that the respondents oppose the grant of leave.
4. The background to this application is as follows. The applicant (“Ms. Jordan”) applied to the High Court for leave to present a referendum petition under Part IV of the Referendum Act 1994 in order to challenge the validity of the provisional referendum certificate published in relation to the referendum on the Thirty-Sixth Amendment of the Constitution Bill 2018.
5. The High Court (Kelly P.) gave its decision on the 20th July 2018, and refused to grant leave to Ms. Jordan (Jordan v. Ireland  IEHC 438). Ms. Jordan appealed the decision of the High Court to the Court of Appeal. Birmingham P. delivered the judgment of the Court of Appeal (Irvine and Hogan JJ. agreeing) on the 27th August 2018, dismissing Ms. Jordan’s appeal.
6. Before going on to consider the arguments raised by Ms. Jordan in her application for leave, it is necessary to say something about stateability. In this regard, reference might be made to the determination of this Court in Walshe v. Ireland and ors  IESCDET 37. That determination concerned an application for leave to appeal from a decision of the Court of Appeal upholding a refusal by the High Court to grant leave to bring a referendum petition in relation to the referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015. This Court refused leave to appeal from the decision of the Court of Appeal in that case on the following basis:-
7. In this context, reference might also be made to the recent determination of this Court in Tracey v. Ireland and ors  IESCDET 123, where it was noted:-
“While the passage of a referendum proposal is a matter of considerable importance, the Court is satisfied that the decision of the Court of Appeal to dismiss the appeal from the refusal of the High Court to grant leave to issue a referendum petition does not involve any matter of general public importance.
The decision of the Court of Appeal was the application of the principles of law set out in McCrystal v. Minister for Children and Youth Affairs  IESC 53 and Jordan v. Minister for Children and Youth Affairs  IESC 33.
There is no ambiguity or uncertainty in the law and no reason to question the application of those principles to the facts of this case.
There is no substance to the points raised by the applicant.”
8. It is in this context that the arguments raised by Ms. Jordan must be considered. For leave to be given it is necessary that this Court be satisfied that there are stateable grounds of appeal which involve issues of principle and not merely the application of well settled law to the circumstances of the case.
“Any decision of the People of Ireland to amend the Constitution by referendum is, by definition, a matter of general public importance. It does not follow, however, that every or any individual legal challenge to the validity of a referendum must necessarily be deemed to be of the same general public importance, so as to merit the grant of leave to appeal to this Court pursuant to the provisions of Article 34 of the Constitution. As the Court has pointed out in a number of determinations (see, in particular, PriceWaterhouseCooper v Quinn Insurance), the argument sought to be raised must in the first place be stateable. The points made by the applicant must be scrutinised in the light of this requirement.”
9. As appears from the notices filed there are essentially two sets of grounds on which it is said that the constitutional threshold for leave to appeal to this Court is met. The first set of grounds concern both the fact of the engagement of members of the Government on the Yes side of the campaign and certain contentions about matters said by members of the Government in the course of the campaign.
10. The law in this area is well settled as a result of a number of decisions of this Court many of which are referred to in the judgments in this case in both the High Court and the Court of Appeal. There is nothing in the Constitution which prevents members of the Government from engaging in the debate as to whether the Constitution should be changed. The Constitution itself contemplates that it can be changed by amendment. Indeed, before a bill proposing such an amendment can be presented to the People, it must first pass the Oireachtas. Thus, a majority of the members of the Oireachtas must support the matter going to the People before the opportunity to amend the Constitution arises. If that happens it is for the People to exercise their judgment on whether the amendment should be carried or not and it is for the People to assess the arguments put forward by any interested parties. The settled case law of this Court makes clear that members of the Government are entitled to engage in that process and debate and it is a matter for the People to form a judgment at the end of the day on the merits or otherwise of the proposed amendment. In the view of this Court the grounds related to the involvement of members of the Government in the campaign are unstateable having regard to the settled case law in this area.
11. So far as the grounds concerned with alleged irregularities in the voting register are concerned it is clear that both the High Court and the Court of Appeal adopted the test identified by this Court in the challenge brought in the previous Jordan proceedings. It is clear, therefore, that the assessment of both the High Court and the Court of Appeal involved the application of the correct test and that any further appeal would simply involve a re-assessment of the evidence to ascertain whether it might be said that there was an error. As has been pointed out in many determinations of this Court since the 33rd Amendment came into effect, it is no longer the function of the Supreme Court to deal with correction of error and in particular a contention that the assessment of evidence in the High Court and the Court of Appeal led to an incorrect view of the facts. In addition, it is worth commenting that it is difficult to disagree with the assessment made by the Court of Appeal of the evidence presented in this regard as being “flimsy”. Against that background this Court is satisfied that the judgments of the High Court and the Court of Appeal on this aspect of the case involved the application of well settled principles to the particular evidence and facts of this case. On that basis the constitutional threshold is not met.
12. Finally, it is sought to raise the question of the order for costs made against Ms. Jordan. The discretion which both the High Court and the Court of Appeal enjoyed to decline to award costs against Ms. Jordan notwithstanding the fact that she had lost her case undoubtedly exists. There is well settled authority on the circumstances in which such a discretion might be exercised in constitutionally related challenges such as those which are involved in this case and the considerations which properly go to the exercise of that discretion. A final judgment in respect of costs involves the exercise of a discretion in accordance with those principles. In the absence of there being a stateable argument that the manner in which the exercise of that discretion which occurred in the case in question was wrong in principle, it is clear that the constitutional threshold could not be met. There is no such stateable argument disclosed here.
13. For all of the foregoing reasons the Court is not satisfied that the constitutional threshold for leave to appeal has been met and refuses leave.
AND IT IS HEREBY SO ORDERED ACCORDINGLY