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  • risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin 16 Article 15 provides Serious harm consists of c serious and individual threat to a civilian s life or person by reason of indiscriminate violence in situations of international or internal armed conflict 17 Article 18 of the Qualification Directive provides Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V 18 Section 3 of the Immigration Act 1999 conferred on the Minister the power to make orders for the deportation of people including as provided in s 3 2 f a person whose application for asylum has been refused by the Minister 19 The Qualification Directive was implemented in Ireland by the adoption of the European Communities Eligibility for Protection Regulations 2006 S I No 518 of 2006 hereinafter the Regulations 20 Regulation 3 of the Regulations provides in relevant part 1 these Regulations apply to the following decisions in these Regulations referred to as protection decisions made on or after the coming into operation of these Regulations a b a the notification of an intention to make a deportation order under section 3 3 of the 1999 Act in respect of a person to whom subsection 2 f of that section relates 21 Regulation 4 of the Regulations provides 1 a A notification of a proposal under section 3 3 of the Act of 1999 shall include a statement that where a person to whom section 3 2 f of that Act applies considers that he or she is a person eligible for subsidiary protection he or she may in addition to making representations under section 3 3 b of that Act make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification b An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect 2 The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3 2 f of the 1999 Act applies or which is in a form other than that mentioned in paragraph 1 b 22 Regulation 4 2 is the legal basis upon which the Minister says that the Applicant may not make an application for subsidiary protection and that he is not obliged to consider it 23 The Supreme Court has held that Regulation 4 2 does not confer any power or discretion on the Minister to consider applications for subsidiary protection other than in the cases provided for namely those of persons whose applications for asylum have been refused by the Minister In the same case the Court held that the provision was not capable pursuant to the principle of conforming interpretation of being interpreted to that effect 24 Ireland is the only Member State of the European Union which has not adopted a single administrative procedure applying Council Directive 2005 85 EC on minimum standards on procedures in Member States for granting and withdrawing refugee status hereinafter the Procedures Directive This has been noted in the judgment of this Court in Okunade v Minister for Justice Equality and Law Reform ors 2012 IESC 49 the report from the Commission to the European Parliament and the Council on the Procedures Directive COM 2010 465 final paragraph 4 2 and in the judgment of the Court of Justice of 22nd November 2012 in Case C 277 11 M M v Minister for Justice Equality and Law Reform and others Arguments of the parties 1 Applicant s submissions 25 The Applicant claims that he fears that he risks suffering serious harm as defined in particular in Article 15 c of the Qualifications Directive if compelled to return to Pakistan He cites Case C 465 07 Elgafaji 2009 ECR 1 921 to argue that the criteria for the grant of subsidiary protection are wider than those which apply to the grant of refugee status 26 He says that he is entitled to have his subsidiary protection application considered by the Minister without having to submit an asylum application Neither Article 78 of the Treaty nor the Qualification Directive limits the right to apply for subsidiary protection to failed asylum seekers 27 The Applicant submits that both recital 14 and the Commission Proposal for what became the Qualification Directive demonstrate that subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention It is a complementary or supplementary status in the sense that it is an alternative status available to persons who are not refugees 28 Subsidiary protection is drawn from sources different from the Geneva Convention which provides for refugee status The Commission Proposal stated see p 5 Though no specific EU acquis on the issue of subsidiary protection exists the ECHR and the case law of the European Court of Human Rights provide for a legally binding framework informing the Commission s legislative work on this issue Partly in response to the case law of the European Court of Human Rights and general principles of international humanitarian law Member States have developed schemes of subsidiary or complementary protection This Proposal has drawn from the disparate Member State systems and has attempted to adopt and adapt the best ones Rather then creating new ratione personae protection obligations incumbent on Member States the Proposal is clarifying and codifying existing international and Community obligations and practice 29 The Applicant says that the Regulations do not properly transpose the Qualification Directive into Irish law insofar as they prevent an application for subsidiary protection from being made by a person who is not a failed asylum seeker He submits that Regulation 3 1 and 4 2 in particular are incompatible with the Directive 30 He says the State cannot be permitted by its transposing regulations

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  • to substantiate an application to join Third Parties The circumstances apparently relied upon had been known to the Defendant since July 2005 and the Plaintiff s particulars were supplied in July 2009 At par 10 of his Affidavit the Deponent says it has become apparent that the Plaintiff was under his parent s control This assertion is again a formula used to disguise the absence of any change of knowledge It is claimed that an amendment is consequent upon this further information The information appears to relate to the presence of the Plaintiff s parents in the hotel but that cannot have either surprised the Defendant or have gradually emerged The affidavit concluded with a prayer to the Court to refuse the motions because inter alia they are unjustly made to found a Third party application which is destined to be late oppressive and without disclosure of a case sic of action against the proposed new parties 8 On the 9th May 2011 having regard to the affidavits lodged including that of the first named appellant filed on the 5th May 2011 and submissions of counsel for the respondent and counsel for the plaintiff the High Court O Neill J granted liberty to the respondent to amend its defence and liberty to issue and serve a third party notice on the appellants 9 The orders of the 9th May 2011 have not been appealed Third party notice 10 The third party notice was dated the 20th May 2011 and stated The respondent claims against you to be indemnified against the plaintiff s claim and the costs of this action or contribution to the full extent of the plaintiff s claim on the grounds that you were responsible for the welfare of the plaintiff at the time of the accident and that you owed the plaintiff a duty of care Motion to set aside third party notice 11 The appellants entered an appearance on the 1st June 2011 and filed a notice of motion on the 17th June 2011 seeking to set aside the third party notice and proceedings pursuant to Order 16 In the affidavit of Robert O Byrne senior of the 17th June 2011 the grounds were stated to be inordinate delay citing s 27 1 b of the Civil Liability Act 1961 In the affidavit of Robert O Byrne senior of the 17th June 2011 the grounds were stated to be inordinate delay citing s 27 1 b of the Civil Liability Act 1961 in support and that the proceedings were ill founded against the appellants Judgment of the High Court 12 On the 25th July 2011 O Neill J refused the relief sought by the appellants finding that there had been considerable delay on the part of the respondent in processing the claim against the appellants and that he had considered on the 9th May 2011 the affidavit of the first named appellant who had set out his complaints of delay The learned trial judge noted that the respondent s affidavit of the 14th July 2011 dealt with delay in a cursory manner The learned trial judge held that this application to set aside the third party notice was quite unusual as it involved the parents of the plaintiff and an issue of parental neglect and whether or not the plaintiff was under their care and control He stated that the case against the appellants was one of substance and that prejudice was very unlikely Justice must be borne in mind and also where the onus of proof lies He held that it was quite clear that there is no prejudice and he held that to strike out the third party notice against the appellants would be disciplinary and that referring to words of O Flaherty J orders should not be made for disciplinary purposes Notice of appeal 13 The appellants filed a notice of appeal against the judgment and order of the High Court of the 25th July 2011 on the 9th August 2011 on the following grounds 1 The learned trial judge erred in law in not setting aside the said third party proceedings against the parents 2 The learned trial judge erred in law and on the facts in failing to have due regard to the inordinate delay on the part of the respondent in seeking to join the parents as third parties herein the accident the subject of these proceedings having occurred on the 18th July 2005 the personal injuries summons herein having issued on 12th June 2008 and an appearance thereto having been entered on behalf of the respondent on 23rd June 2008 3 The learned trial judge erred in law in failing to have due regard to the fact that the respondent herein gave no explanation whether by way of affidavit or otherwise in relation to the delay which occurred between October 2008 when the application to join the parents as third parties should have been made and 26th January 2011 when the respondent issued a notice of motion to join the parents as third parties save that the respondent at paragraph 9 of an affidavit sworn on behalf of the respondent on 14th July 2011 by Kevin Mays Solicitor groundlessly stated that there has not been an inordinate delay in issuing and serving the Third Party Notice 4 The learned trial judge failed to have due or any regard to the total absence of explanation for the aforesaid delay on the part of the respondent in seeking to join the parents as third parties herein 5 The learned trial judge unfairly took in to account arguments which had been made on behalf of the Plaintiff herein on 9th May 2011 in motions herein to which the Parents were not then parties and had no right of audience Submissions 14 Very helpful written and oral submissions were given to the Court Mr Patrick Keane S C counsel for the appellants said that the main point was delay by the respondent in

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  • the applicant s EU citizen wife not been shown to comply with one or more of the conditions required under Regulation 6 2 a of the 2006 Regulations during their continued period of residence in the State since May 2005 5 If contrary to the assertion contained in ground 1 above the first named respondent is entitled to consider the circumstances of residency referred to in that ground the first named respondent failed to conduct the said enquiry in accordance with the law including EU law by failing to provide the applicant with a sufficient account of those matters which were of concern and which might lead to an adverse finding thus depriving the applicant of a reasonable opportunity to seek to deal with such concerns or argue that such concerns did not provide a sufficient or proportionate basis for an adverse decision 3 The circumstances of the case now allow the opportunity of making a number of observations regarding the procedure and practice in applications for judicial review generally and specifically in this case immigration and asylum law 4 On the 1st January 2012 an amendment to Order 84 of the Rules of the Superior Courts was promulgated This amendment was contained in S I No 691 of 2011 These new Rules were to be construed together with the Rules of the Superior Courts 1986 These amended Rules were promulgated because of a concern that judicial review applications for leave were being brought on grounds which were over lengthy repetitive and which failed to properly focus on the real issues 5 Order 20 of the amended Rules provides 1 No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule 2 An application for such leave shall be made by motion ex parte grounded upon a a notice in Form No 13 in Appendix T b an affidavit in Form No 14 in Appendix T which verifies the facts relied on 3 It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs ii or iii of sub rule 2 a an assertion in general terms of the ground concerned but the applicant should state precisely each such ground giving particulars where appropriate and identify in respect of each ground the facts or matters relied upon as supporting that ground emphasis added 6 Form No 13 referred to above explicitly reiterates that in a recital of the grounds upon which relief is sought the applicant should state precisely each such ground giving particulars where appropriate and identify in respect of each ground the facts or matters relied upon as supporting that ground 7 Regrettably these explicit stipulations are frequently not complied with and the same grounds are set out in as many different varying and wearying reformulations of the same point as can be conceived Practitioners should realise that in this entirely counterproductive and unnecessary process there is a

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  • not it should intervene In McKenna at p 32 Hamilton C J stated i The courts have no power either express or implied to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers ii If however the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof the courts are not only entitled but obliged to intervene iii The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution emphasis added 30 While the High Court quoted the above statement by Hamilton C J in McKenna it then diverted from that test As quoted previously the High Court stated that the breach must be something blatant and egregious It was also stated that it must be something seen or found in the presentation Whilst the latter is a correct analysis of the relevant principles the test something blatant and egregious is not Nor is there an analogy to be found in the test established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1 KB 223 as formulated in this jurisdiction in The State Keegan v Stardust Victims Compensation Tribunal 1 I R 642 and in O Keefe v An Bord Pleanála 1993 1 I R 39 Nor is the intent of the respondents relevant The test to be applied is as established in McKenna and is whether the circumstances are such as to amount to a clear disregard by the Government of the principles stated This is an objective test Consequently the High Court erred in the test it applied I would allow the appellant s appeal on this ground 31 I will proceed to apply the established test i e to determine whether the respondents acted in clear disregard of the McKenna principles Therefore the facts require to be analysed to determine whether it has been established that there was a clear disregard by the respondents of the McKenna principles Burden of Proof 32 The burden of proof lies on the appellant to establish on the balance of probabilities that on the facts of the case there has been a clear disregard by the respondents of the McKenna principles 33 On the first day of legal argument on this appeal Richard Humphries S C counsel for the appellant submitted that a publicly funded government publication about the referendum must be fair equal and impartial David Hardiman S C for the respondents agreed that these words were appropriate Later it was also agreed that any such publication should be neutral when viewed broadly This is an appropriate statement of the McKenna principles and so these matters fall to be determined in accordance with the constitutional jurisprudence The McKenna Principles 34 The constitutional jurisprudence was stated in McKenna In that case a majority of the Court Hamilton C J O Flaherty Blayney and Denham J J Egan J dissenting held that the Government in expending public monies in promotion of a particular result in a referendum process was acting in breach of the Constitution As Hamilton C J stated at p 42 The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a Yes vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State 35 An election process whether it be a local election a general election or a referendum is not an exercise of executive power by the Government 36 In McKenna the majority of the Court Hamilton C J O Flaherty J Blayney J Denham J J wrote judgments setting out their reasons for the jurisprudence A majority found a breach of the constitutional right to equality There were references also to the democratic process and fair procedures 37 From these judgments I have extracted the following principles i The Government is entitled to campaign for a yes vote by any methods it chooses other than by the expenditure of public funds Such methods include writing speaking broadcasting canvassing leafleting and advertising Some of these methods such as writing speaking broadcasting on ordinarily scheduled current affairs programmes and canvassing are cost free Others such as the creation of a dedicated website leafleting and advertising involve expenditure Partisan advertising that is advertising in one way or another urging a particular result may be carried out by any person or by an organised group or political party including parties composing the Government of the day but it must be done at their own expense Any information disseminated by the Government at public expense must be equal fair impartial and neutral ii The Government is entitled to campaign for the change and the members of the Government are entitled in their personal party or Ministerial capacity to advocate the proposed change Government Ministers may use their State transport in relation to the referendum and may avail of the radio television and other media to put forward their point of view However the Government and its members must not spend public monies in favour of one side The Right to Equality iii The right to equality applies in the referendum process Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens iv Spending public monies in favour of one side of a referendum puts the voting rights of one class of citizen those in favour of change above those of another class of citizen those against v The public purse must not be expended to espouse a point of view which may be anathema to certain citizens who of necessity have contributed to it The Right to a Democratic Process vi There is a right to a democratic process in the holding of a referendum It is an interference in the democratic process for the Government to spend public monies in a referendum campaign to benefit one side rather than another The democratic process is protected by the McKenna principles Right to Fair Procedures vii In submitting the proposed amendment to the decision of the people the Government should observe fair procedures The scales must be held equally between those who support and those who oppose an amendment to the Constitution Right to Freedom of Expression viii The freedom to express opinions incorporates the corollary right that in the democratic process of free elections public funds should not be used to fund one side of an electoral process whether it be a referendum or a general election to the detriment of the other side ix The Government has a right to give information to clarify situations to give explanations and to deal with unforeseen matters and emergencies but in doing so public funds should not be used to favour one side in a referendum 38 The McKenna principles require that a publicly funded publication about a referendum must be fair equal impartial and neutral Principles Considered Elsewhere 39 The use of public funds in a referendum process has been the subject of careful consideration at international level in other nations and in statutory law While the Irish jurisprudence may be found in McKenna it is a useful exercise to consider the principles and law which have been established elsewhere Code of Good Practice on Referendums 40 A Code of Good Practice on Referendums referred to as the Code has been adopted by the Venice Commission 41 The European Commission for Democracy through Law better known as the Venice Commission is the Council of Europe s advisory body on constitutional matters The Commission was established in 1990 and it played a leading role in the adoption of constitutions which conform to the standards of Europe s constitutional heritage Initially conceived as a tool for emergency constitutional engineering the Commission has become an internationally recognised independent legal think tank Today it contributes to the dissemination of the European constitutional heritage based on the continent s fundamental legal values while continuing to provide constitutional first aid to individual states Ireland was one of 18 founding member states of the organisation when it was set up on 10th May 1990 Ireland was also one of the ten founding members of the Council of Europe which was established on 5th May 1949 42 The reasons for and the achievement of the Code are set out in the Introduction to the European Commission for Democracy through Law Venice Commission Code of Good Practice on Referendums adopted by the Council for Democratic Elections on 16th December 2006 and the Venice Commission on the 16th and 17th March 2007 43 The Code includes the following 2 2 Equality of opportunity a Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on This entails a neutral attitude by administrative authorities in particular with regard to i the referendum campaign ii coverage by the media in particular by the publicly owned media iii public funding of campaign and its actors iv billposting and advertising v the right to demonstrate on public thoroughfares 44 On the issue of funding the Code states as follows 3 4 Funding a The general rules on the funding of political parties and electoral campaigns must be applied to both public and private funding b The use of public funds by the authorities for campaigning purposes must be prohibited Emphasis added 45 On the matter of funding the explanatory memorandum which is appended to the Code states 25 There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion 46 Thus it is clear that the McKenna principles are in concordance with the Code Other States 47 It is useful to note the approach taken in other States There is no single way to achieve a fair and equal referendum process States in Europe approach referendums and the requirement for equality and fairness by different routes An example may be seen in the United Kingdom in the Political Parties Elections and Referendums Act 2000 referred to as the Act of 2000 Under this Act there is provision for the establishment of an Electoral Commission which inter alia makes provision for election and referendum campaigns and the conduct of referendums On the issue of funding provision is made for the payment of not more than 600 000 to designated organisations on each side in a referendum process 48 Part VII of the Act of 2000 makes provision for referendums Section 108 provides that the Commission may designate permitted participants as organisations to which assistance is available in accordance with s 110 Section 108 2 states that where there are only two possible outcomes in the case of a referendum the Commission may designate one permitted participant as representing those campaigning for the outcome in question but otherwise shall not make any designation in respect of the referendum If there are more than two possible outcomes provision is made for designated organisations Where the Commission has made designations then assistance is available according to s 110 Section s 110 2 provides that the Commission shall make to each designated organisation a grant of the same amount which shall not exceed 600 000 49 The Electoral Commission in the United Kingdom is an independent body established by Parliament to work to support a healthy democracy where elections and referendums are based on principles of trust participation and no undue influence The Electoral Commission is currently considering and making proposals for the Scottish Referendum in 2014 In relation to their timetable for example the Commission states that it should be able to publish its views on the intelligibility of a proposed referendum question around ten weeks after receiving notice of the wording of the question In this time it carries out public opinion research 50 Looking further afield to Australia s 11 4 of the Referendum Machinery Provisions Act 1984 provides that the Commonwealth shall not expend money in respect of the presentation of the argument in favour of or the argument against a proposed law except in relation to the preparation printing and posting of pamphlets by the Electoral Commissioner The pamphlets set out the arguments for and the arguments against the proposal to amend the Constitution The arguments are submitted by a majority of the members of the Parliament in favour of the proposal and a majority of the members of the Parliament against the proposal The Electoral Commission also prepares a statement outlining the textual alterations and additions proposed to be made to the Constitution of Australia Thus the federal government cannot spend public monies in favour or against a proposal to amend the Constitution save for the printing and distribution of information which presents the official yes or no sides of the argument and the functioning of the Electoral Commission 51 In the State of Victoria Australia s 177C of the Electoral Act 2002 is concerned with the distribution of arguments for and against Bill to electors regarding the amendment of the State s Constitution Act 1975 It mirrors the provisions of s 11 4 of the Referendum Machinery Provisions Act 1984 The public monies of the State cannot be spent in favour or against a proposal to amend the Constitution Act 1975 The Facts 52 Having identified the relevant law in Ireland in the McKenna principles it is now necessary to identify the relevant facts of the case 53 At issue in this case is the use of public funds in the publication of a booklet website and advertisements by the Minister in the time between the publication of the Bill as passed by the Oireachtas and the 10th November 2012 when the people were asked to vote on a proposed change to the Constitution 54 The booklet website and advertisements on their face failed the test of being fair equal and impartial failed to be neutral and failed to hold the scales equally between both sides as may be seen by looking at the materials 55 There was language in the materials which on its face favoured one side over the other Thus for example on the front page of the booklet and on the home page of the website there were slogans One of the slogans was Protecting children As counsel for the appellant argued for some who opposed the referendum the referendum was not about protecting children but would involve more State intervention with children which they opposed 56 Yet the phrase Protecting Children was on both the booklet and the website as follows Booklet The phrase Protecting children could be found in the Children s Referendum information booklet published by the Minister on the following pages i Cover page of the booklet ii Page 1 of the booklet iii Page 6 of the booklet iv Page 14 of the booklet Website The phrase Protecting children could be found on the Children s Referendum website published by the Minister on the following web pages i In the centre of the home page of the website under the heading What will change if the Referendum is passed ii As the first link on the left hand side of the home page of the website This link continued to be visible when other web pages were accessed by someone browsing the website iii When the second link Protecting children was accessed this phrase appeared at the beginning of the web page iv In the text written under the Supporting Families web page where it stated that p rotecting children and supporting families are simply two sides of the one coin v In the text written under the What will change if the referendum is passed web page 57 Variations of the phrase Protecting children could be found as follows i A variation of the phrase appeared on the web page Protecting Children by use of the phrase Protect the child s safety and welfare in the home ii A variation of the phrase appeared on the web page Why do we need this referendum by use of the phrase protection of all our children iii Another variation in the form of t o protect children from abuse and neglect appeared in the text written under the What will change if the referendum is passed web page iv There was also a similar variation under the FAQs web page where the question was posed Why is this proposed Referendum needed In the text written under this reference was made to ensuring the protection of all of our children v In the text written under Don t children already have rights under the Constitution reference was made to the protection and equality of children vi In the section which referred to Minister Fitzgerald launches information website for Children s Referendum a comment on the wording of the proposed amendment was attributed to the Minister whereby she stated that i t s about protecting children from abuse and neglect 58 Another slogan used by the Minister in the booklet and website was Supporting Families This was not impartial fair nor did it pass the equality test 59 As counsel for the appellant argued for some who opposed the referendum the amendment did not support families indeed to the contrary it was argued that the referendum was detrimental to families as it may give rise to more State intervention in families 60 Yet the phrase Supporting Families was on both the booklet and website as follows Booklet The phrase Supporting families could be found in the Children s Referendum information booklet on the following pages i Cover page of the booklet

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  • than in accordance with the provisions of the Constitution and in clear disregard thereof the courts are not only entitled but obliged to intervene 3 The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution emphasis added 13 Hamilton C J went on to consider whether there had been in the McKenna case a clear disregard by the government of its constitutional duties in expending public funds for the purpose of promoting a campaign for a yes vote in the proposed referendum 14 Hamilton C J explained in the course of his judgment that neither the Constitution nor the Referendum Act 1994 envisaged any role for the Government in the submission of the Bill by referendum to the decision of the People He went on to conclude The action of the Government in expending public funds on the promotion of such a campaign was not an action in pursuance of the executive power of the State Even if it were it would still be subject to examination and review by the Court in accordance with the dicta quoted in the course of this judgment The role of the People in amending the Constitution cannot be overemphasized It is solely their prerogative to amend any provision thereof by way of variation addition or repeal or to refuse to amend The decision is theirs and theirs alone 15 The Chief Justice concluded Once the Bill has been submitted for the decision of the People the People were and are entitled to reach their decision in a free and democratic manner The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a Yes vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State 16 In his judgment O Flaherty J pointed out that the government is entitled to spend money in providing information to the public on the implications of a constitutional amendment and indeed entitled to campaign as are individual members of the government for a change in the Constitution He added that it would be unrealistic to expect a Government to remain neutral on a topic which it has through its initiative brought to the People 17 He added however the Government must stop short of spending public money in favour of one side which has the consequence of being to the detriment of those opposed to the constitutional amendment To spend money in this way breaches the equality rights of the citizen enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizen those in favour of the change above those of another class of citizen those against The public purse must not be expended to espouse a point of view which may be anathema to certain citizens who of necessity have contributed to it 18 He went on to add I should think it bordering on the self evident that in a democracy such as is enshrined in our Constitution which is not exclusively a parliamentary democracy it has elements of a plebiciary democracy it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather than the other 19 Blayney J in his judgment noted Neither the Constitution nor the Act gives any other role to the Government And even in the matter of giving information to the electorate about the proposed amendment the task of doing this as appears from the terms of s 23 of the Act is given to the two Houses of the Oireachtas and not to the Government It is reasonable accordingly to infer that neither the Constitution nor the Referendum Act 1994 envisaged that the Government once a Bill for the amendment of the Constitution had been passed would have any further role to play other than to submit the Bill by referendum to the decision of the People 20 He concluded that the government were constitutionally bound to act fairly in discharging its executive functions without favouring any section of the People at the expense of any other section This would seem to be a minimum requirement for the discharge of any constitutional obligation The people are entitled to be treated equally 21 Denham J agreed with the judgment of the Chief Justice that in expending public monies to campaign for a specific outcome to a referendum the Government are not acting within their powers under the Constitution and the law 22 In the course of her judgment she stated The citizen is entitled under the Constitution to a democratic process The citizen is entitled to a democracy free from governmental intercession with the process no matter how well intentioned No branch of the government is entitled to use taxpayers monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote 23 She pointed out that Power derives from the People and is exercised under the Constitution through their organs of government legislative executive judicial Power and decision making in referenda is with the People Conclusion on the McKenna Principles 24 Having regard to the provisions of the Constitution and the dicta in the judgments of the majority in the McKenna case I think it can be properly said that a referendum by its very nature and essence involves the people directly in the governance of the country This is their right and it is a right enjoyed exclusively by them It was after all in the words of the Preamble the people who enacted and gave unto themselves the Constitution All sections of the community have an equal right to participate in the constitutional and political process that is engaged when a referendum is being held Once a referendum process has been launched with the passing of the appropriate Bill the Constitution does not envisage or confer any special role let alone power on any of the organs of State in that process The spending of public funds to advocate one side to the detriment of others would distort that democratic process 25 To place matters in context it might be well to bear in mind that both the government and members of the Oireachtas will invariably have had a major role to play in the political process leading to the passing of a Bill containing a proposal to amend the Constitution Every such Bill is invariably preceded by an extended public and political debate both within the Oireachtas and outside it on whether a particular issue or question should be the subject of an amendment to the Constitution The government and members of the Oireachtas have a public constitutional role to play in the formulation of any proposal to amend the Constitution including the text of any such proposal There is the legislative process that follows the initiation of any Bill containing such a proposal Both the government and members of the Oireachtas have the opportunity to express in both Houses the views on the merits or otherwise of any such proposal and to advocate reasons why it should or should not be adopted Extensive debates within the Houses of the Oireachtas can serve to inform the public on the issues which arise and to persuade them as to how they should vote in the event of the Bill being adopted 26 In a subsequent political campaign neither is the Government nor members of the Oireachtas restricted in their capacity nor should they be to advocate one view or another concerning the merits of the proposed amendment to the Constitution The inhibition that derives from the McKenna principles relates to the use of funds from the public purse to advocate one side of the argument to the detriment of others once the matter goes before the People for their decision 27 Such a constitutional restriction does not mean that members of the government or of the Oireachtas are restrained from participating in a referendum campaign in their capacity as office holders including the incidental use of facilities such as offices and incidental services which are available to them as office holders or elected representatives 28 From the foregoing I would conclude that a The right to a fair and democratic referendum process is a right vested in the People as the ultimate guardians of the Constitution Once the constitutional process of consulting the people by way of referendum has been initiated on the passing of an appropriate Bill that right must be respected b Such a right means that the use of funds from the public purse to promote one side of the referendum campaign to the detriment of the others would be in breach of that constitutional right 29 In the course of his submissions counsel for the appellant submitted that the principles pronounced in McKenna required that any expenditure of public funds by the government for the purposes of a referendum campaign must be expended in a manner which is fair equal and impartial This approach was not disputed by counsel for the respondents 30 This is the formulation agreed and applied by the Court when it concluded that the monies expended by the government on the website booklets and advertisements in relation to the recent campaign were not fair equal or impartial 31 That is the formulation to be applied for the purposes of examining whether any such expenditure complies with constitutional requirements The Onus of Proof 32 It is not in issue that the onus of establishing that the respondents acted in breach of their constitutional duties lies on the appellant the plaintiff in this case This in turn gives rise to the test to be applied by the Court in deciding whether grounds have been established which require the Court to intervene to protect a party from a breach of constitutional duty on the part of one of the organs of state in a case such as the present The dissemination of information in a referendum process with use of public funds is in itself lawful provided it does not give rise to an unfair impartial or unequal interference with that process The State may use various means including statutory mechanisms to disseminate information concerning the matters arising in relation to a proposed amendment The Referendum Commission is one such example No complaint has been made concerning the manner in which the Referendum Commission exercised its functions and disseminated information in the course of the referendum in question 33 In the High Court the learned President also dealt with this case as a matter of urgency and delivered an ex tempore judgment In the course of his judgment he alluded to the clear disregard test referred to by Hamilton C J in McKenna However in assessing whether the material in this case was in breach of the government s constitutional obligations he added The breach complained of must be something blatant and egregious It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants mires the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government Such an approach would place the courts in a situation where having entered into this particular domain they could be called upon in virtually every referendum to perform some exercise of hyper zealous vigilance of every piece of information disseminated by Government 34 I sympathise with the concerns of the learned President in the latter part of the passage quoted It is not for this Court to be concerned with the merits as such of statements made by information officially disseminated in the course of a referendum campaign Words and phrases are often imprecise tools however carefully crafted Ambiguities may be unavoidable and it may often be valid to say that something could have been better phrased In a judicial review of the dissemination of such information the Court must take an overall view of the broad thrust and effect of the material complained of It is not simply a question of trawling through the material so as to pick up on questionable nuances or slippages in presentation On the other hand objective judicial scrutiny of such material in order to determine whether taken as a whole it offends against the principles of fairness impartiality and equality does not necessitate the Court in becoming enmeshed in the merits as such of the material or its minutia Moreover the intention of the disseminator of the information is not determinative of the outcome of such scrutiny In the present case there is no allegation that there was any mala fides behind the dissemination of the material On the contrary all the evidence is that a great deal of care was exercised with a view to avoid a breach of the McKenna principles as perceived by the compilers of the material The issue of mala fides may only be relevant to an issue as to whether the Court should issue a mandatory order against a government see TD v Minister for Education Others 2001 4 I R 260 35 However it was submitted on behalf of the appellant that the learned President erred in adopting blatant and egregious as the test to be applied in any judicial scrutiny of the material in this case 36 In the McKenna case Hamilton C J referred to the decision of this Court in Boland v An Taoiseach cited above and in particular the judgment of FitzGerald C J in which he expressed the view that the courts should not interfere with the exercise by the government of its executive functions unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution He then went on to apply in that case a test of clear disregard That test is clearly consistent with the approach adopted by the other members of the majority in the McKenna case 37 It is axiomatic to state that the Government of the day must conduct its affairs in accordance with its obligations under the Constitution If it clearly disregards those duties then the courts are bound to intervene where this is necessary to protect the rights of others I do not consider that the test of blatant and egregious was the correct one to be applied 38 Accordingly the onus in this case is on the appellant to establish that the material in question was in clear disregard of the constitutional principles referred to in the McKenna case That is the objective test to be applied Other Countries 39 It may be appropriate to note in passing that the principles deriving from the Constitution which ensure that the referendum process should be fair are not unique to this country Many countries apply comparative principles whether derived from the constitution or statute law which prohibit regulate or control the use of public funds in referendum campaigns with a view to guaranteeing the fairness of the referendum process within their constitutional framework These include Australia Austria Spain Portugal Finland Sweden the United Kingdom and certain states in the United States to refer to some of them In 2006 the European Commission for Democracy through Law otherwise known as the Venice Commission and the Council for Democratic Elections adopted a Code of Good Practice on Referendums which included the statement that Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on This entails a neutral attitude by administrative authorities in particular with regard to public funding of campaign and its actors In the explanatory memorandum accompanying the code it states There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion The Material 40 In support of his claim the plaintiff relied upon affidavits of three witnesses These were Mr John Waters the well known journalist Miss Lyn Sheridan an expert in public relations and Doctor Colm Kenny professor of communications at Dublin City University 41 Affidavits were also filed on behalf of the respondents These included Mr Gerald Angley First Secretary of the Department of Foreign Affairs Trade who had been temporarily assigned to the Department of Children Youth Affairs Miss Elizabeth Canavan Assistant General Secretary of the Department of Children Youth Affairs and Doctor Eoin O Malley lecturer in Political Science at the School of Law and Government Dublin City University The respondents also relied on an affidavit from Dr Richard Sinnott Emeritus Professor of Political Science University College Dublin and Dr Kevin Rafter a lecturer in political communication and journalism at Dublin City University All of these opponents provided interesting and thoughtfully expressed opinions on the material in issue They were expressed from different perspectives and different in their analysis as to the nature and effect of the material particularly in terms of whether it could be considered to advocate a yes vote in the referendum 42 In certain circumstances evidence of this nature could be of vital importance but in the circumstances of this case they constitute opinions based almost entirely an analysis of written material contained in the publications the subject of the proceedings In this case the intended meaning of the textual material is patent In the end the Court has to make up its own mind on the nature and import of the material itself applying the objective test

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  • a later point she said Ireland is a democratic state The citizen is entitled under the Constitution to a democratic process The citizen is entitled to a democracy free from governmental intercession with the process no matter how well intentioned No branch of the government is entitled to use taxpayers monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote 23 The basic principle underlying these dicta is that of equal treatment The government may not use public funds in a referendum campaign to benefit one side rather than the other O Flaherty J p 43 favouring any section of the People at the expense of any other section Blayney J p 49 to advocate a specific result Denham J p 53 24 On the burden or level of proof required to establish that a particular government funded campaign breached these principles the Hamilton C J referred to authority including the judgment of Fitzgerald C J in Boland v An Taoiseach 1974 I R 338 referring to clear disregard by the Government of the powers and duties conferred on it by the Constitution He described the relationship between the courts and the executive as follows at page 32 1 The courts have no power either express or implied to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers 2 If however the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof the courts are not only entitled but obliged to intervene 3 The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution Having regard to the respect which each of the organs of government must pay to each other I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution such fact must be clearly established 25 The appellant must therefore discharge the burden which is on him by clearly establishing as a matter of fact that the Minister has acted in clear disregard of the restraints laid down in McKenna While the Government or a particular Minister is perfectly entitled to advocate a particular outcome in a referendum insofar as any campaign is paid for out of public funds it is not permissible for the Government to favour a particular outcome 26 It is accepted by the appellant that the Government is entitled to use public funds to provide necessary information to the People and the respondents maintain that it s use of the voted funds was intended to do no more than that but it is not permissible under the guise of an information campaign to depart from the path of strict neutrality The website 27 The website opened and operated on behalf of the Minister at the address www childrensreferendum ie had a home page entitled Children s Referendum headed by the statement Voting Day Saturday 10th November 2012 On the home page there were some ten pages that could be opened The headings or names of these pages were Why do we need this referendum What will change if the referendum is passed Thirty First amendment to the Constitution linking to the text of the amendment Protecting Children Supporting Families Removing inequalities in adoption Recognising children in their own right Programme of Change for Children FAQs Frequently asked questions on the Children s Referendum Fact Sheets 30 The following are representative passages They are a sufficient to demonstrate the general thrust and direction of the content of the website I quote some of the text under each of the above headings Why do we need this referendum Our Constitution is the foundation for all the State s laws and policies However it does not provide an express statement of rights for children The Government is bringing forward this Referendum to give the Irish People the opportunity to change this This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State s obligation as far as practicable to protect those rights Passing this Referendum will put children s needs at the centre of decision making and will facilitate changes to adoption legislation What will change if the referendum is passed This Referendum proposes to place a dedicated Article in the Constitution which has children as its central focus This Referendum is about strengthening the Constitution To provide that the rights and protections set out in this new Article should apply equally to all children regardless of the marital status of their parents To protect children from abuse and neglect To recognise children in their own right Protecting Children For children at risk this Referendum seeks to ensure that they are protected from harm It sets out when and how intervention should occur with the focus on the child and referring to the impact of parental failure on the child s safety and welfare rather than solely on such failure and the reasons for it Overall Article 42A focuses on the protection afforded to children under the Constitution while respecting and preserving the rights of parents and the family Supporting Families The amendment will require State intervention in the family to be proportionate Removing inequalities in adoption On the passing of this Referendum a clear standard will apply across areas of law relating to child welfare and protection and family law that the rights and protections set out are to be enjoyed by all children irrespective of the marital status of their parents Recognising children in their own right It will mean that provision is made by law that in the resolution of all proceedings concerning the protection and welfare adoption guardianship custody and access in respect of any child the best interests of the child shall be the paramount consideration This Referendum proposes to change our Constitution to include a standalone article Article 42A on Children is thus providing a strong affirmation of each individual child is inherent rights while continuing to respect and preserve the rights of the family as set out in the existing Article 41 This Referendum also proposes for the first time to give Constitutional recognition to the best interests and views of the child in court cases affecting their life This Referendum if passed will mean that provision May be made by law to ensure that in the resolution of all proceedings concerning the protection and welfare adoption guardianship custody and access in respect of any child that the paramount consideration is the best interests of the child the views and wishes of the child should be taken into account as long as the child is sufficiently mature to make this appropriate 31 Under the FAQs heading the website offers answers to a number of general questions and repeats much of the material already quoted I will refer to only two of these 32 The website poses the question What will it change It proposes the following answer The changes that would be brought about by the proposed Constitutional Amendment include the following the provision of express rights for all children strengthening of protections for children where parents are failing in their duties towards them the removal of inequalities in adoption between children on the basis of the marital status of their parents strengthening of the principles of best interests and consideration of the views of children in child care adoption and family law proceedings 33 The website also poses the question Don t children already have rights under the Constitution It provides the following answer While all citizens have rights that Constitution does not currently provide an express statement of rights for children The proposed amendment provides a strong affirmation of each individual child is in here and rights and a clear statement that children s rights need to be protected and vindicated while continuing to respect and preserve the rights of the family as set out in the existing article 41 The booklet 34 The booklet was circulated shortly after the opening of the website The letter of 19th October 2012 from the Chief State Solicitor said it would be circulated either on that day on the following Monday 35 The booklet largely repeats the material on the website if sometimes in different language It will suffice to refer to the answer to the question Why this particular Referendum It is as follows Our Constitution is the foundation for all the State s laws and policies However it does not provide a separate statement of rights for children The Government is bringing forward this Referendum to give the Irish people the opportunity to make a decision on this matter The proposed amendment is intended to give recognition to the rights of children under the Constitution and to affirm the States obligation as far as practicable to protect those rights The Referendum is intended to put children s needs at the centre of decision making and to facilitate changes to adoption legislation The booklet contained a clear significant error amounting to a misstatement of the effect of the referendum proposal The Chief Justice and O Donnell J have explained this matter and its significance Other evidence 36 The plaintiff s own grounding affidavits were supported by the affidavits of three independent witnesses Mr John Waters the well known journalist swore that the website was designed to put in a particular point of view in relation to the amendment which is to say that it impliedly endorses a Yes vote and offers no sense or a hint that there may be significant or weighty contrary arguments are objections to the amendment or its wording His opinion was that both the website and the booklet were riddled with value judgements emotional and irrelevant material one sided presentation omission of important balancing context minimising or omission of difficulties and real problems of interpretation Ms Lyn Sheridan an expert in Public Relations expressed as her professional opinion the broad view that both the referendum and the booklet were partial unbalanced and persuasive of a Yes vote Dr Colum Kenny Professor of Communications at Dublin City University was of the opinion that the documents not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in a referendum 37 Mr Gerald Angley First Secretary of the Department of Foreign Affairs and Trade said that he had been temporarily assigned to the Department of Children and Youth Affairs to assist with referendum arrangements He had experience with the Stability Treaty Referendum in May 2012 which he described He found that the Department was conscious of the legal environment including McKenna While Mr Angley did not consider that the information disseminated by the Department was biased or that it advocated a particular outcome he thought it necessary for the government to ensure full information is available to the public on not just the constitutional amendment itself but the policy issue around it He added The government is uniquely positioned to explain the wider policy context and in my opinion has a duty to do so as I see it off the referendum in the first place 38 Ms Elizabeth Canavan Assistant Secretary General of the Department Children and Youth Affairs swore an affidavit in which she provided a comprehensive and detailed account of the management of the referendum process from the point of view of her Department She traces the background to the referendum by reference to many reports by eminent public persons and bodies going back as far as the year 1993 She describes research into behaviour and attitudes conducted at the behest of the Department and the engagement of a public relations firm to assist in the work She identified the need for information to be made available to the public to ensure that decisions regarding the proposed amendment would be as informed as possible and to deal with some of the issues identified as most clear to the general public and of most concern to them 39 Ms Canavan said that the Department had been attentive to and at all times mindful of the provisions of law and the Constitution and specifically the jurisprudence relating to the non use of public resources to advocate a particular outcome in the context of a Referendum 40 She said that the Department had worked closely with the Office of the Attorney General She made several references to involvement of that office a full briefing by the Attorney General s office was provided to senior staff the public relations firm and the Minister s advisers on 1st August 2012 On 3rd of October 2012 the Department sent a circular letter to all departments concerning the implications of the McKenna case It referred to the previous legal advice from the Office of the Attorney General which it outlined as follows During the referendum campaign period the Government has a right and duty to give information to clarify situations or to give explanations and deal with unforeseen matters and emergencies However the Government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome 41 Ms Canavan described the preparation of materials for the website and for the booklet and referred to observance of a Public Communications Protocol That document lays down procedures for the circulation of a wide range of publicity material namely press queries articles broadcast twitter events etc and to press releases and speeches It does not refer either to the website or to the booklet which were apparently yet to be prepared The AGO presumably the Attorney General s Office was to be included in the clearance if required 42 Ms Canavan says in her affidavit that this protocol was followed always completing the cycle with sign off from the Department s legal adviser and The Office of the Attorney General having regard to accuracy and the McKenna Judgement and by the Assistant Secretary In the case of the booklet she says that a final version was prepared for consideration of legal advisors She adds Following detailed feedback from the legal side including the Office of the Attorney General a final draft was agreed as appropriate This was signed off at Assistant Secretary level and provided to printers for layout and print 43 It is notable that this account at no point alleges that the website or the booklet was actually reviewed and approved by the Office of the Attorney General The advice of that office as very briefly summarised in the form of two brief sentences seems correct and in accordance with the McKenna judgment The first sentence refers to the right of the Government to give information to clarify situations or to give explanations The second emphasises that the government is not entitled to expend public monies for the purpose of promoting a particular outcome 44 The respondents provided two affidavits sworn by eminent experts in political science with specialties in the area of the effects of political campaigns on the outcome of elections or referendums Each had been asked to evaluate the website and the booklet for political neutrality Each was fully aware of the principles of the McKenna case 45 Dr Eoin O Malley lecturer in Political Science at the School of Law and Government Dublin City University has written extensively on the electoral effects of political campaigns In a wide ranging consideration of the issues he made the following comments in giving information about the wide ranging legislative proposal with complex social effects one must necessarily base it upon the stated rationale for that proposal if one cannot articulate the rationale of legislation then one can only restate the content it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of the legislation it is not reasonable to expect the sponsor to actively sterilise the subject in the present instance it is difficult and in some respects impossible to present the proposed amendment free of its inherent attractions 46 He thus reached the conclusion that In my opinion the predominant and overall impression created by the website and leaflet is that of explanation of context and the project of the amendment If one is attracted to this it is because of the substantive factual merits disclosed and the fact that children are the recipients I do not see that the presentation is responsible for such an attraction or materially influences the reader 47 Dr Richard Sinnott Emeritus Professor of Political Science of the School of Politics and International Relations University College Dublin a renowned writer and commentator on the subject also provided an affidavit His general comments included the following It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference the only real and practical test is one of broad fairness has the publication in general followed a reasonably informative line bearing in mind the nature of the subject The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote then the less neutral it is This is a fallacy The test of neutrality must I believe be primarily based on what a publication expressly professes taking into account a commonsense view of the context 48 Dr Sinnott s conclusion

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  • referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children The very formulation of the question is revealing It simply assumes that the proposed change is necessary It is something which we the People of Ireland need The only question is why that is so The response suggests that the existing text of the Constitution is out of date and does not reflect the shared value of the People in relation to ensuring the protection of all our children This is a powerful statement in favour of the passage of the Referendum Indeed during the course of argument counsel for the State parties was asked by a member of the Court whether if the heading was recast to Why do we need to vote yes it would be necessary to make any consequential change to the subsequent text That is a useful and revealing test The entire text is as follows Our Constitution is the foundation for al the State s laws and policies However it does not provide an express statement of rights for children The Government is bringing forward this Referendum to give the Irish People the opportunity to change this This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State s obligation so far as practicable to protect those rights There have been seventeen major reports on child protection failings in Ireland since 1970 The Government now has a Programme for Change for Children and is bringing on new laws in the reporting of child abuse and safer practices for organisations where children spend time and is also reforming Ireland s child protection services by transferring them from the HSE and establishing a dedicated new Child and Family Support Agency These reforms focus on intervention to ensure the safety and welfare of children is protected and to ensure that child protection services can respond appropriately to all child protection concerns Passing this Referendum will put children s needs at the centre of decision making and will facilitate changes to adoption legislation It seems clear that no change to the text would be necessary if the title were changed to Why do we need to vote yes 14 The website concluded with a reference to the sponsoring minister the Minister for Children and Youth Affairs and her speech launching the website which recorded that the launch took place after the 31st Amendment of the Constitution Children Bill 2012 completed all stages of debate in the Oireachtas with the full support of TDs and Senators The Minister commented on the wording agreed by the Oireachtas as follows I would encourage everyone to read the wording on the information website www childrensreferendum ie If you do you will see that it is very clear in its objective It s about treating all children equally in particular by removing inequalities in adoption It s about protecting children from abuse and neglect It s about supporting families and it s about recognising children in their own right These statements by the Minister leading the campaign for the adoption of the proposal clearly relate back to the themes established on the first page of the website In my view it is self evident that these slogans are intended to present the Referendum in a positive light and to encourage support for it If there were any doubts about that however then it is useful to consider the text of the Fine Gael website which of course unambiguously called for a yes vote as indeed it was fully entitled to do It contained a speech by the same Minister on an occasion described as the launch of Fine Gael s campaign for a Yes vote in the Children s Referendum and therefore on an occasion of unequivocal support for passage of the Referendum It is revealing how that speech which was clearly and properly a forceful advocacy of a Yes vote made repeated use of the same themes and slogans focussed upon in the website campaign Child protection concerns haven t suddenly gone away The sad reality is they never probably will But that doesn t mean we shouldn t do all we possibly can to protect children That s why we should vote Yes on Saturday November 10th when after 19 years of talk the Children s Referendum is finally held A Referendum which is about protecting children from abuse and neglect It s about supporting families by re affirming and underpinning early intervention in family support services to protect children in their homes It s about treating all children equally in particular by removing inequalities in adoption It s about recognising children in their own right Emphases added The only difference between the message of this speech and that of the website is that this speech contains an explicit exhortation to vote yes something the defendants regard as critical and to which I will return The Minister then returned to the theme But this Referendum matters Because Every Child Matters But they don t get to decide We do It is about them but it s up to us Emphasis added That was a message repeated more than once during the speech and is of course the theme of the advertising campaign The speech therefore illustrates not only how compatible the website material was with the yes campaign but also a significant blurring of the distinction between the Government s information campaign and the Yes campaign of the Government parties Not only is this demonstrably not neutral it is not in any real sense information at least in the sense of factual information as discussed in McKenna No 2 It is noteworthy that the Referendum Commission seeking to perform the same task by the same constitutional standard did not use language or presentation which was in any way similar in tone 15 It was agreed by all parties that the booklet was similar in style and presentation to the website but more neutral in its tone It was finalised and issued after these proceedings were commenced It did however contain one significant matter In what was described as an article by article guide to the proposed amendment the booklet dealt with the replacement of Article 42 5 and said It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well defined circumstances Key requirements will continue to be as follows the State can only make use of the power in exceptional cases a failure of parental duty towards the child must exist where the parents regardless of their marital status fail in their duty towards their children any failure must involve harm or risk to the child s safety or welfare to such extent that the safety or welfare of any of their children is likely to be prejudicially effected the actions of the State must be in balance with the harm or risk to the child that needs to be addressed by proportionate means and the actions the State can take must be set out in law as provided by law Emphasis added In fact there was a clear error in this statement The bullet points set out components of the proposed new amendment It was accordingly wrong to suggest that these were merely the maintenance or continuation of existing requirements The error was pointed out by Mr McCrystal in his affidavit of the 23rd of October It was acknowledged as an error by the State on the first day of the hearing in the High Court but no steps were taken until the second day of the hearing in this Court to correct it In the meantime booklets continued to be distributed to houses around the State While the impact of any such mistake might well be debated the attitude to it is revealing If the booklet had been prepared on behalf of an independent body concerned with neutral delivery of factual information and with maintaining its reputation as an impartial provider of accurate information it seems likely that the discovery of an error like this and its correction would have been a matter of much greater concern The Evidence 16 The plaintiff swore three affidavits on his own behalf He also obtained affidavits from three witnesses with a significant range of expertise and views The well known writer John Waters swore two affidavits He freely admitted that he was opposed to the amendment and campaigned against it However he also explained that he had 30 years experience of the media and in the field of communications and was familiar with many techniques of persuasion that are employed in public communications and the manner in which Government s use language in an attempt to persuade as opposed to inform While acknowledging his opposition to the amendment he said he was approaching his examination of analysis of the material not in terms of the merits of the amendment but solely in terms of the net issue of whether the material represents a neutral and dispassionate conveying of the information or whether it is designed or likely to favour one side rather than other He conducted a careful detailed and in my view illuminating analysis of the passages in the website including those identified above He considered the booklet more neutral but still favouring a yes vote and considered that the advertisements involved the delivery of subliminal messages which were at least favourable Of the advert he said the following The use of voices of children in the radio advertisement in particular of Sara who is twee and a quatah certainly does not amount to information but more than that cannot but be seen as an attempt to manipulate the emotions of the public The use of children s voices accompanied by the slogan It s all about them but it s up to you suggests that the children of Ireland are imploring voters to help them if not indeed to rescue them from some unspecified situation implicitly a difficult one The advert makes no attempt to deal with any of the issues relating to the amendment but relies entirely on the emotive use of the children whose voices are heard 17 An affidavit was sworn by Lyn Sheridan a director of Aiken Public Relations Company in Belfast Northern Ireland who has more than 20 years experience working on behalf of public and private sector clients She emphasised that she had no role or involvement in the amendment and no particular position on it and no prior dealings with any of the parties to the proceedings Having studied the Government s communication she said that she found the tone to be partial unbalanced and persuasive of a Yes vote In relation to the website she said that the links on the left hand side of the screen of the website Protecting Children Supporting Families Removing Inequalities from Adoption were all propositions supportive of the amendment rather than impartial factual information She concluded that The Government communication regarding the Referendum had the hallmarks of an integrated marketing campaign for which a brand had been carefully deliberately and I would expect professionally devised and managed and that had she as a PR practitioner been asked to prepare materials for a campaign in favour of a yes vote she would have prepared materials similar in content to those of the Government campaign 18 Finally Mr McCrystal submitted an affidavit from Colm Kenny a Professor of Communications in Dublin City University For his part he explained that he was personally in support of the amendment Again he analysed the information in a careful and detailed way and concluded that these information sources that were prepared by or for the Department of Children and Youth Affairs and that relate to the proposed Article 42A not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in the Referendum on 10 November 2012 Collectively these affidavits formed an impressive body of testimony The conclusion which they all reach that the style and tone of the material is that of persuasion rather than impartial dissemination of information provides significant support for the plaintiff s case The Defendants Evidence 19 The defendants relied on evidence from a number of different sources Whether from the accident of the exchange of affidavits within a compressed time scale in an urgent application or from design or both there was little direct engagement in these affidavits with the affidavits sworn on behalf of the plaintiff There was no cross examination of any of the deponents and therefore the case was conducted at the level of rival assertions In my view it is a striking feature of the defendants affidavits that they did not engage with the detail of the materials of which complaint was made and instead made observations at a level of some generality and abstraction 20 An affidavit was provided by Mr Gerard Angley a first secretary in the Department of Foreign Affairs on secondment to the Department of Finance He explained that the information campaign adopted in relation to the Children s Referendum had followed from the experience of the Stability Treaty Referendum He observed that market research conducted in the aftermath of the two referenda held in October 2011 had indicated a public desire for more information from a variety of sources That much is true but the report itself did not suggest any demand for additional governmental information On the contrary it reported that voters were especially keen to hear from voices outside the political environment This witness had only been involved in the information campaign after the setting up of the website and during the preparation of the booklet He expressed his general conclusion that he did not consider the information disseminated by the Department to be biased or to advocate a particular outcome 21 The principal affidavit opposing the application was that of a Ms Canavan an assistant general secretary in the Department of Children and Youth Affairs with responsibility for the Referendum campaign This affidavit set out in considerable detail the background to the decision to propose an amendment to the Constitution She explained that particular attention was paid to the decision in McKenna No 2 and exhibited a protocol which showed the route for initial approval of documentation which included an optional step of reference to the Office of the Attorney General if required She also exhibited a memorandum of instructions on the implication of the McKenna No 2 judgment that stated During the referendum campaign period the Government has a right and duty to give information to clarify situations or to give explanations and deal with unforeseen matters and emergencies However the Government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome This appears to be an attempted synthesis of the judgments in McKenna No 2 Furthermore the memorandum also offered advice as to use of the Government website It advised that speeches and statements by Government ministers could be carried on the website However any passages in statements that advocate a Yes vote should be redacted This memorandum illustrates the approach of the defendants to the implications of McKenna No 2 Even though the importance of McKenna No 2 is what it precludes primary emphasis in the memo is placed on what is considered permissible a Government information campaign What is prohibited is described as promoting a campaign for a particular outcome which is illustrated by the advice that statements which may otherwise strongly support the campaign for passage of the Referendum may be used on the Government website as long as the passage which specifically advocates a yes vote is redacted 22 This is an interpretation of the McKenna No 2 judgment which is generous in its approach to the powers of Government during the Referendum and narrow in its reading of what is prohibited In paragraph 72 of her affidavit Ms Canavan stated The phraseology of the information is a reflection of the context in which the need for the referendum arises and the express contents of the wording thereof To the extent that the Plaintiff herein feels that the content and or context of the referendum is in itself a positive affirmation thereof that is to attack the wording and core factual purpose of the Referendum This passage illustrates the abstract and generalised way in which the defendants sought to account for the claims made by the plaintiff It seems to be argued that the statements on the website and in the booklet and advertisements cannot be said to favour the governmental side The proposal is a good thing and it cannot therefore be wrong to say so This also reflects a line of thought found in other affidavits because something can be said about the proposal and not be positively inaccurate it cannot be impermissible But this is surely to risk confusing accuracy with impartiality 23 Ms Canavan expressed her conclusion at paragraph 97 as follows It is believed to be a fundamental public duty and the entitlement of a Government department associated with the subject of any legislative change to publicise and explain the content purpose and broader legal or social context of the change In the context of the constitutional change proposed I believe that the Department has undertaken this duty with conscientious attention to the prohibition against the funding of promotional material and with the intention of informing the public of the subject in a way that satisfies the needs of clarity simplicity and with an emphasis appropriate to the gravity of the issue I believe that the complaints made by the plaintiff belong either to his private views or the debate on the substantive issue His criticisms arise from such a subjective and intricate impression as to be unpredictable at the stage of composition of the Department s publications and are argumentative on review at this stage It should be said that the plaintiff made it clear that he was prepared to accept the Department had acted in good faith in preparing the campaign and did not challenge it on that ground 24 In addition to these affidavits the defendants also relied upon an affidavit of Dr Kevin Rafter a lecturer in Dublin City University in political communications and journalism Although from the same faculty as Professor Colm Kenny and although his affidavit appears to have been sworn after that of Professor Kenny it does not engage with that evidence or indeed mention its existence Again Dr Rafter s evidence operates at a level of some generality Dr Rafter considered the tone of the website low key and thought the campaign subheadings unimaginative but considered that they did align with the Referendum wording and showed no significant or identifiable added value commentary beyond the line which is the proposal of the amendment itself I interpret this to mean that if any statement can be related to an aspect of the proposal it is permissible On this view since it can be said that the Referendum was about protecting children and supporting families then it was not wrong for the Government to spend public funds saying so Again Dr Rafter sought to defend the material by a form of negative argument He pointed out what the material did not do and thereby illustrated what it appears he considered was prohibited At paragraph 15 of his affidavit he stated There are no graphic images that could be described as being of a campaigning nature in terms of advocating one side of the referendum debate over another 25 Finally the defendants relied on affidavits from the discipline of political science The first affidavit was that of the well known expert Professor Richard Sinnott Professor Emeritus of Political Science of the School of Politics and International Relations in University College Dublin He stated that he had been retained by the Department to advise in the course of the Referendum He explained that in his deliberations with the Department adherence to the McKenna No 2 judgment was a key consideration and was very consciously to the fore in discussions with representatives of the Department He offered the view that any discussion of human rights in this case children s rights has an inherently normative dimension This dimension will almost certainly manifest itself in the course of the provision of information in this context even when the intention of the drafters of a document is confined to describing and explaining what the proposal is about It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference Instead he suggested that the only real and practical test is one of broad fairness has the publication generally followed a reasonably informative line bearing in mind the nature of the subject He then compared the website with the websites of parties campaigning explicitly for a yes or no campaign and observed The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote then the less neutral it is This is a fallacy At the level of theory this may be correct at least where the debate is self evidently all one way although in such circumstances a 1 1 million public relations campaign might seem unnecessary or one side of the debate has plainly misconceived the nature of the proposal but at a more practical level where there exists a genuine dispute and therefore a real need for neutral information then the more a publication resembles one side of the debate the more it certainly risks being seen as not impartial This rather theoretical argument does perhaps implicitly recognise that the Departmental publications did indeed resemble one side of the debate Taking into account therefore in his view the difficulties of providing information while avoiding advocacy and taking a common sense view of the context he concluded that while there were four debatable points for objection in the booklet he did not believe either the booklet or website shows signs of being intended or having the effect of guiding or swaying voter responses as a result of substance or presentation or to the extent that this conclusion might be debated certainly not to any extent that could be reasonably avoided in the creation of the materials in question or could be confidently said to be likely to arise Again it is noteworthy that Professor Sinnott does not engage directly with the criticisms made of the specific portions of the website referred to above and seeks to defend the departmental material by asserting the impossibility of avoiding normative statements and suggests that if a relaxed view is taken of the test that the material is in general unobjectionable 26 Dr Eoin O Malley a lecturer in political science in DCU took a somewhat different line He seemed to suggest that it was impossible to provide truly neutral information or at least for the proposer of any amendment to do so He said If one is to give information about a proposal and is restricted to just giving information then one almost inevitably must base it primarily on the rationale for the proposal He then stated that I believe it is important to recognise that it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of legislation This sentence which was referred to by the learned President of the High Court as candid and generous is to me somewhat puzzling The words for the sponsor of legislation appears to imply some important qualification but if it is possible for anyone to remove the natural and intrinsic features of the subject of legislation it is not clear why that should be beyond the capacity of the sponsor Self evidently it is not beyond the capacity of the Referendum Commission This passage seems to suggest that it is simply not possible to expect the sponsor of legislation in this case the Department to be neutral about it This seems a dubious proposition not least because of the example given in McKenna No 2 where in addition to the frank advocacy involved in the Government s campaign the Government also provided funds for a factual information campaign which was balanced and of which no complaint was made But it is apparent that Dr O Malley like the other experts and opponents on behalf of the defendants must adopt some significant qualification of the nature of the test before seeking to assert with any plausibility that this information is or can be considered impartial Thus he continued It is not reasonable to expect the sponsor to actively sterilise the subject One must determine whether the sponsor has either explicitly promoted support or so interfered as to render an unattractive subject attractive Any less a distinction makes its impossible to distinguish between the subject itself and the presentation This sets out a theme emphasised by counsel for the defendants An objective test was required and that was provided by prohibiting a positive exhortation to vote in a particular way Whatever the merit of this as a generalised test it does not appear to be derived in any way from the judgments in McKenna No 2 He concludes that the booklet does not advocate a particular outcome This he says is a notable absence and is a clear distinction from a campaigning type booklet which would make such a bias manifest Finally at paragraph 25 of his affidavit he said Where propaganda is alleged I believe it is important that it is manifestly propaganda If propaganda is forbidden it must be identifiable as such or else an author faces an invisible standard For the sake of completeness I should say that on the hearing of this appeal the plaintiff submitted further evidence and exhibited a statement from a discussion on thejournal ie website in which Dr O Malley expressed views on the nature of the campaign In particular in relation the Fianna Fáil slogan adopted Protect Children which as the plaintiff observed is a direct parallel of the key message Protecting Children on the Government website and leaflet Dr O Malley stated The phrase Protect Children is again an attempt to frame the referendum which those on the no side might take issue with The phrase is pretty anodyne but that doesn t really matter The plaintiff relied on this because of course his case was that the website material was precisely that an attempt to frame the Referendum in a fashion favourable to the Yes side 27 I have set out the evidence submitted at some length I think it is possible to make the following observations on the approach which the evidence adduced on behalf of the defendant reveals There is no direct reference to or quotation from the judgments of this Court in McKenna No 2 or a coherent or consistent explanation of what the defendant considers that case decided Where such reference is made indirectly it is apparent that the defendant s approach is to emphasise the fact that a factual information campaign did not contravene the principles in McKenna No 2 to adopt a broad understanding of what constitutes such factual information together with a narrow reading of what was prohibited in that case as advocacy campaigning propaganda or direct exhortation The case made asserts the impossibility of a truly neutral standard either in general or at least on the part of the Government proposing the amendment and suggests that the question of whether Government material complied with the McKenna No 2 principles should be assessed by a particularly generous standard which recognises the inherent nature of the topic and asserts the inevitability of partiality and imposes an objective standard namely a prohibition on direct exhortation to vote Yes The evidence only engaged with the specific evidence on behalf of the plaintiff at a level of abstraction and generalisation Indeed it did not address the evidence of either Professor Kenny or Ms Sheridan at all Although the campaign was itself an exercise in public relations no evidence from that field was proffered to explain the message the material was designed to convey or otherwise to counter Ms Sheridan s evidence The High Court Judgment 28 In the High Court the learned President of the High Court dismissed the plaintiff s claim It is significant however that in doing so the President adopted an approach which showed that he considered it was necessary to produce something exceptionally partial before the standard set in McKenna No 2 would be breached Observing that the defendants had not sought to challenge the question or otherwise seek to refine the principles enunciated in McKenna No 2 he set out his view that the bringing forward of a referendum proposal by the Government is a political act or initiative in respect of which the Court should be extremely slow to intervene Accordingly he considered at paragraph 37 that the yardstick against which the material should be assessed was that The breach complained of must be something blatant and egregious It must be something which is to be seen or found in the presentation of the proposal and not to be a matter which to quote counsel for the defendants mires the court in assessing the merits of the substantive issue or an excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government It is in my view instructive that it was by setting the hurdle at the height marked blatant and egregious that it was possible to conclude that the material in this case did not offend the McKenna No 2 principles The Defendants Submissions 29 As a matter of logic it might be said that the material in this case could be justified in a number of ways first by contending that it was truly impartial on any standard second by contending that McKenna No 2 was wrongly decided third by taking a narrow reading of that case and asserting either that impartiality was not the standard required or alternatively that it should be judged by a very deferential standard or both For reasons I have set out I do not consider that it is possible to say that the material is on any view impartial and indeed on one view the approach taken by the defendants witnesses is a confirmation of this conclusion It is also significant as observed by the learned President that the defendants did not seek to question the decision of McKenna No 2 nor indeed to suggest it should be qualified in any way I do not consider that it would be appropriate for me to offer any observations on this matter I approach this case in the same way as it was approached by the defendants on the basis that the McKenna No 2 decision correctly states the law and is binding and that the only question for resolution is its application to this case Accordingly the defendants case appeared to be limited to contending for a narrow reading of the McKenna No 2 decision i e that it simply precluded direct advocacy of a yes vote when supported by public funds and contending at the same time for a high threshold for review 30 At the outset of submissions counsel for the defendants sought to contend that McKenna No 2 forbade what he described as deliberate self demonstrating political action with public funds which he said was not present here Of course this phrase cannot be derived from any of the judgments in McKenna No 2 He sought to justify it as a distillation of the McKenna No 2 principles by arguing that that case was decided in the context of deliberate self demonstrating political action with political public funds In other words the McKenna No 2 case involved the contribution of IR 500 000 to promote a Yes campaign and only precludes such expenditure But it is impossible in my view to contend that McKenna No 2 can be so narrowly understood That would be to confuse the result with the reasoning by which it was reached and the facts of the case with the principle it illustrates Counsel for the defendants did accept that a Government funded campaign had to be fair equal and impartial which is a notably broader formulation and one more consistent with the reasoning in McKenna No 2 Later he also accepted that any information campaign should be neutral 31 The core of the defendants case therefore seemed to turn on an insistence that the material published by the Government did not offend the McKenna No 2 principles as interpreted by the defendants Central to that proposition was the threshold necessary to establish a breach of those principles The argument was that McKenna No 2 recognised the Government could provide information and that Hamilton C J had referred to the necessity of establishing clear disregard which contemplated a margin of deference to governmental decisions which meant in turn and this was the crucial step in the argument that only a clear and unequivocal exhortation to vote yes was prohibited This argument is indeed consistent with the memorandum of instruction to the department which suggested that it was sufficient to redact from any speech those portions alone that actually said vote yes All the elaborate argument and evidence really came to this proposition and understandably so Unless the test of clear disregard of the constitutional obligation of fair equal impartial and neutral could be reduced to a question of the presence or absence of a positive exhortation to vote then it would be difficult to find that the present material was compatible with that constitutional standard However I cannot understand how a standard of clear disregard which involves a consideration of the degree to which material could be said to be impartial could be equated with a test dependent on the presence of an exhortation to vote no matter how partial and tendentious the material might otherwise be 32 Building upon that perhaps slender basis it was submitted that there were analogies for the level of tolerance which it was asserted the McKenna No 2 principles at least as interpreted by the defendants allowed to governmental action Thus it was suggested that in the context of administrative law the same principle was reflected in the Wednesbury rules which distinguish between rationality of the decision making process and the merits of the decision itself This is a reference to a test in administrative law in the U K set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation 1948 1 K B 223 found in Irish law in State Keegan Lysaght v Stardust Victims Compensation Tribunal 1986 1 I R 642 that a court will only quash an otherwise lawful decision if it flies in the face of fundamental reason or is so unreasonable that no reasonable decision maker could have arrived at that decision Reliance was also placed on s 43 of the Referendum Act 1994 which provided that a petitioner might question a provisional referendum certificate where he or she could show that the result was affected materially by an irregularity It is suggested that this test which applied after a referendum should apply conversely so that it was argued that only such matters as can assuredly be said to materially

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  • to which it relates not later than 4 weeks after the receipt of the application cause a statement in writing or in such other form as may be determined to be given to the person a of the reasons for the act and b of any findings on any material issues of fact made for the purposes of the act High Court judgment 22 Cooke J heard the appellant s application for judicial review Based on the written and oral submissions of the parties the learned judge identified the issues before the court in terms which can be summarised as follows a Whether the Minister notwithstanding the wording of s 15 of the Act of 1956 can be compelled in law to state reasons for a refusal to grant a certificate of naturalisation b in the event that the first question is answered in the negative whether the relevant provisions of the Act of 1956 in particular s 15 are incompatible with the Constitution c whether in considering an application for a certificate of naturalisation and thus access to citizenship of the European Union the Minister is obliged to take into account any provisions or principles of European Union law 23 The learned judge in a careful analysis of the issues rejected the contention that the Minister was obliged to accompany his decision by a statement of reasons There were two essential reasons for that conclusion 24 Firstly whether the Minister would decide to grant or refuse a certificate of naturalisation was one which was in the words of the section within his or her absolute discretion This meant the learned judge held quite literally that the Minister does not need to have or to give any reason for refusing an application for a certificate Thus he continued if the Minister does have a reason he is not obliged to divulge it to a disappointed applicant Consequently it would clearly fly in the face of the unambiguous intention of the Oireachtas as thus expressed for this Court to attempt to hold otherwise He pointed out that under the Act of 1956 no obligation is imposed on the Minister to give reasons for a refusal decision In his view as the Act gives no right of appeal against the exercise of the absolute discretion when a refusal decision is made it is not possible to imply any entitlement to a statement of reasons 25 In support of these propositions the learned judge cited extensively from the decision of Costello J in Pok Sun Shum v Ireland 1986 I L R M 593 noting in particular the view of Costello J that There is no general rule of natural justice that reasons for the decisions of an administrative authority must be given 26 The second major consideration referred to by the learned judge again on the authority of Pok Sun Shum v Ireland was that the appellant in applying for a certificate of naturalisation and thus for access to Irish citizenship was not seeking a decision relating to anything to which he had a right what he sought in his application was a benefit or privilege to which he had no legal right The learned judge reasoned as follows While it might be said that the evolution of the principle of fair procedures and the obligation to state reasons over the last 25 years would have reduced the occasions when neither obligation arose in respect of a decision with adverse consequences it remains the position in the view of this Court that the principle of fair procedures and the requirement to state reasons can have no application where an administrative decision is wholly devoid of any detrimental or disadvantageous consequence for its addressee 27 Responding to counsel s argument that the procedures adopted by the Minister were unfair and failed to provide the appellant with an effective remedy particularly in the light of Article 13 of the European Convention on Human Rights the learned judge held that the need for an effective remedy only arises where there is some wrong to be made good This was because the refusal of the certificate in no way alters the position or status of the applicant In summary the learned judge held the refusal of the certificate of naturalisation is a refusal to accord a privilege in respect of which there is no right or entitlement to qualify It has no effect upon the personal status in law or on the legal rights of the disappointed applicant Thus neither French nor European law in relation to judicial review of administrative decisions affords any basis for departing from the approach of Costello J to the entitlement to judicially review a measure devoid of legal effects upon its addressee or to the entitlement to a statement of reasons from the decision maker for that purpose 28 In addition the learned judge dismissed the argument made on behalf of the appellant in reliance upon the judgment of the Court of Justice in case C 135 08 Rottmann v Freistaat Bayern 2010 E C R I 01449 to the effect that the Minister s decision whether to grant Irish citizenship also determines whether the appellant becomes a citizen of the European Union and consequently that the Minister must comply with certain general principles of EU law when exercising his discretion As he observed neither the Treaties nor any legislative measures of the Union institutions have sought to encroach in any respect upon the sovereign entitlement of the Member States to determine the basis upon which national citizenship will be accorded The Rottmann case did not have the effect that Member States when deciding whether to admit persons to citizenship were obliged to observe in particular the provisions of Article 41 2 paragraph 3 of the Charter of Fundamental Rights of the European Union namely the right to good administration including the obligation of the administration to give reasons for its decisions It is clear from Article 51 of the Charter that its provisions are addressed in the first instance to the institutions bodies offices and agencies of the Union and can apply to the Member States only when they are implementing Union law The learned judge dismissed the application for judicial review The appeal 29 The appellant presented arguments under three headings That insofar as it provides that the Minister may refuse to grant a certificate of naturalisation in his absolute discretion i e without giving reasons s 15 of the Act of 1956 is unconstitutional That the section should be interpreted in the sense that the Minister is obliged to give reasons The decision of the Minister to grant or refuse a certificate of naturalisation is a decision regarding the acquisition of citizenship of the European Union to which general principles of EU law apply in particular Article 41 of the Charter of Fundamental Rights of the European Union and thus that the Minister was obliged to give reasons This it is suggested is a matter which should be referred to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union 30 It was pointed out to counsel that to consider the first of these issues in advance of the second was to put the cart before the horse It is well established in the jurisprudence of this Court that it will not address an issue as to the constitutionality of a law if the case before it can be resolved without declaring the law to be unconstitutional In particular the Court will endeavour to interpret a section of a statute so as to conform with the Constitution and only if that is not possible will it consider declaring the provision incompatible with the Constitution In somewhat similar vein the Court is not obliged to refer a question of interpretation to the Court of Justice for preliminary ruling unless a decision on that question is necessary for it to reach a decision on the case 31 For these reasons it is appropriate to consider in the first instance the submissions of the party on the second issue If the appellant obtains an order of certiorari of the Minister s decision by reason of its failure to state reasons it will be unnecessary to consider the constitutionality of the section or to refer any question for preliminary ruling to the Court of Justice 32 The appellant complains that the Minister s decision refusing him a certificate of naturalisation has significant adverse consequences for a person declared to be a refugee He says that he is left effectively stateless though he retains Syrian nationality that he is unable to obtain a passport and is severely restricted in free movement and travel and that he is denied full integration in the State despite the fact that it has become of necessity his new home and his wife is a citizen The appellants explained various adverse consequences for him as a declared refugee who is not able to acquire Irish nationality and claims that in the light of Article 34 of the Refugee Convention naturalisation ought to be granted to him 33 Although the Minister has told him in the letter notifying him of his decision refusing to grant him naturalisation which he may reapply for the grant of a certificate of naturalisation at any time it is impossible for him to exercise that right effectively so long as he is ignorant of the reasons for the decision He suggests that it is quite likely that the Minister s refusal was based on a misunderstanding of the relevant facts which Mr Mallak could easily have corrected if he had been told what they were Furthermore where the Minister refuses to give any reason or to indicate in any way the basis of his decision he can in effect insulate his decision from all review 34 The appellant draws attention to three High Court decisions in which orders were made quashing decisions refusing to grant certificates of naturalisation namely Mishra v Minister for Justice 1996 1 IR 189 Kelly J L G H v Minister for Justice Equality and Law Reform 31st January 2009 Edwards J and Hussain v Minister for Justice Equality and Law Reform 2011 IEHC 171 per Hogan J In each of these he argues the Minister had provided reasons In the present case there were none The appellant contends that on the refusal of his application for naturalisation at least some meaningful reason should have been given rather than no reason of any kind 35 The appellant contests the distinction drawn by the learned trial judge between decisions involving matters of legal right and those where what a person is seeking a benefit or privilege to which he has no legal right He cites for example the decision of this Court in Garvey v Ireland 1981 I R 75 where it was held that although the office of Garda Commissioner was held at the pleasure of the Government its holder was nonetheless entitled to a minimum of fair procedures The authors of Hogan Morgan Administrative Law in Ireland 4th Ed Dublin Round Hall 2010 are cited for the proposition that Irish courts do not hold the view that the rules of constitutional justice did not apply to privileges The Minister s submissions 36 The Minister accepts that a decision to refuse an application for a certificate of naturalisation is in principle amenable to judicial review referring to decisions concerning the reviewability of decisions of the Director of Public Prosecutions whether or not to prosecute Eviston v DPP 2002 3 I R 260 He also accepts that such a decision is open to review where it is based on a failure to satisfy the conditions for naturalisation set out in paragraphs a to e of section 15 1 A B v Minister for Justice Unreported 2009 IEHC 449 per Cooke J Hussain v Minister for Justice 2011 IEHC 171 per Hogan J He also refers to the decision of this Court in The State Lynch v Cooney 1982 I R 337 37 The Minister recognises a development of the duty to give reasons as an aspect of constitutional justice referring in particular to The State Daly v Minister for Agriculture 1987 I R 165 as an authority requiring reasons where the power to dismiss a civil servant could only be exercised where the appropriate authority was satisfied that the civil servant in question had failed to fulfil certain conditions He argues that a dictum implying an obligation to give reasons in The State Creedon v Criminal Injuries Compensation Tribunal 1988 I R 51 was obiter 38 The Minister submits however that in cases of absolute discretion there is no obligation to give reasons Thus s 15 of the Act of 1956 necessarily excludes any duty to give reasons since such a duty would negate the nature of the discretion conferred Pok Sun Shum v Ireland 1986 I L R M 593 39 Naturalisation is granted by the Minister as a matter of privilege and not of right as demonstrated by Pok Sun Shum v Ireland Mishra v Minister for Justice 1996 1 I R 189 Abuissa v Minister for Justice already cited Jiad v Minister for Justice 2010 IESC 187 per Cooke J The Minister is exercising the executive power of the State Therefore it is argued that although this does not render the decision immune from judicial review the High Court has a more limited supervisory jurisdiction because of the very special nature of the discretion conferred on the Minister by s 15 of the Act of 1956 If there is evidence of capricious arbitrary or unjust exercise of a power the Courts will intervene by way of judicial review but not otherwise Consideration of the issues 40 The Minister refused to give any reason for refusing the application for a certificate of naturalisation in this case The reports record many judicial statements to the effect that there is no general or universal rule of natural justice requiring the makers of administrative decisions to give their reasons On the other hand there is no shortage of cases in which decisions have been held to be defective for failure to give them This is the problem here 41 Before grappling with that issue I would like to address two points which are at the forefront of the Minister s submissions and which have recurred in several of the High Court decisions including that in the present case as grounds for dispensing with the need to give reasons Firstly it is said that where a decision is to be made in the absolute discretion of the decision maker it follows necessarily meaning that it is a simple corollary of that fact that no reason need be given for it Secondly it is argued that the same result flows from the fact that the grant to a non national of a certificate of naturalisation is a matter of benefit or privilege rather than of right 42 Where the decision being made is one which depends on the exercise of the absolute discretion of the decision maker according to the first argument it follows automatically from the very language used that no reason need be given As it was put by the learned High Court judge in the present case quite literally the Minister does not need to have or to give any reason for refusing an application for a certificate But there is a difference between having a reason and disclosing it 43 It cannot be correct to say that the absolute discretion conferred on the Minister necessarily implies or implies at all that he is not obliged to have a reason That would be the very definition of an arbitrary power Leaving aside entirely the question of the disclosure of reasons to an affected person it seems to me axiomatic that the rule of law requires all decision makers to act fairly and rationally meaning that they must not make decisions without reasons As Henchy J put it in a celebrated passage in his judgment in State Keegan v Stardust Victims Compensation Tribunal 1986 I R 642 at page 658 the necessarily implied constitutional limitation of jurisdiction in all decision making which affects rights or duties requires inter alia that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision 44 In similar vein but with slightly different emphasis Walsh J in his judgment in East Donegal Co operative Mart v Attorney General 1970 I R 317 at 343 4 said of the powers conferred on a Minister under consideration in that case which were exercisable at his discretion or as he shall think proper or if he so thinks fit are powers which may be exercised only within the boundaries of the stated objects of the Act they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will 45 The fact that a power is to be exercised in the absolute discretion of the decision maker may well be relevant to the extent of the power of the court to review it In that sense it would appear potentially relevant principally to questions of the reasonableness of decisions It could scarcely ever justify a decision maker in exceeding the limits of his powers under the legislation in particular by taking account of a legally irrelevant consideration It does not follow from the fact that a decision is made at the absolute discretion of the decision maker here the Minister that he has no reason for making it since that would be to permit him to exercise it arbitrarily or capriciously Once it is accepted that there must be a reason for a decision the characterisation of the Minister s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of such requirements of the rules of natural and constitutional justice as would otherwise apply In this connection I agree with the following remarks of of Hogan J regarding the provision under consideration in this case in his judgment in Hussain v Minister for Justice 2011 IEHC 171 This description nevertheless cannot mean for example that the Minister is freed from the obligations of adherence to the rule of law which is the very cornerstone of the Irish legal system Maguire v Ardagh 2002 1 I R 385 at 567 per Hardiman J Nor can these words mean that the Minister is free to act in an autocratic and arbitrary fashion since this would not only be inconsistent with the rule of law but it would be at odds with the guarantee of democratic government contained in Article 5 of the Constitution 46 So far as the second issue is concerned it can be accepted that the grant or refusal of a certificate of naturalisation is at least in one sense a matter of privilege rather than of right The appellant is not a person who by reason of birth in Ireland or by reference to his parentage is entitled as a matter of right to Irish citizenship In the words of s 14 of the Act he is a non national and the grant of the status of citizen upon him is within the discretion of the State Costello J said in Pok Sun Shum v Ireland cited above regarding the applicant in that case that it was relevant to bear in mind that the Minister was conferring a benefit or privilege on the applicant That was undoubtedly a major reason for his conclusion that there was no obligation to give reasons On the other hand that learned judge was quite clear in stating that the applicant had a right to apply to the court for judicial review Bearing in mind that the appellant is a non national it is instructive to recall the remarks of Keane C J concerning the rights of access to the courts of non citizens when delivering the opinion of this Court In the Matter of Article 26 of the Constitution and in the Matter of ss 5 and 10 of the Illegal Immigrants Trafficking Bill 1999 2000 2 I R 360 at page 385 It would be contrary to the very notion of a state founded on the rule of law as this State is and one in which pursuant to Article 34 justice is administered in courts established by law if all persons within this jurisdiction including non nationals did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights It may be that in certain circumstances a right of access to the courts of non nationals may be subject to conditions or limitations which would not apply to citizens However where the State or State authorities make decisions which are legally binding on and addressed directly to a particular individual within the jurisdiction whether a citizen or non national such decisions must be taken in accordance with the law and the Constitution It follows that the individual legally bound by such a decision must have access to the courts to challenge its validity Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective 47 The mere fact that a person in the position of the appellant is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or to apply to the courts for redress The Act of 1956 establishes a legal procedure permitting non nationals subject to compliance with a number of conditions to apply for certificates of naturalisation The appellant enjoys the status of a refugee because he has been so declared by the Minister By virtue of s 3 of the Refugee Act 1996 he enjoys a number of specific legal rights including the right to reside in and travel to and from the State Specifically he has the right of access to the courts in the like manner and to the like extent in all respects as an Irish citizen s 3 2 v Relevantly for the purposes of this case he enjoys the legal right to apply for a certificate of naturalisation Article 34 of the Geneva Convention see par 16 above would appear to encourage contracting states to grant naturalisation to those to whom the have granted refugee status It is not contested that the Minister is obliged in processing such applications to act in accordance with the law The Minister accepts that in principle his decisions are open to review and in certain circumstances applications for review have been successful in the High Court A distinction has been made in some of the cases so far as the power of review is concerned between cases where the Minister finds that an applicant has failed to comply with one of the statutory conditions in s 15 1 and what might be called his more general absolute discretion 48 In A B v Minister for Justice 2009 IEHC 449 Cooke J held that w here the Minister is not relying upon his absolute discretion to refuse an application under s 15 but is rejecting it upon the basis of non compliance with one or more of the naturalisation conditions his refusal is clearly amenable to judicial review and it would be one of the circumstances in which fair procedures would require the reason for refusal to be stated 49 In his judgment in Hussain v Minister for Justice cited at paragraph 45 for a different reason Hogan J held that the Minister s assessment of the good character issue was plainly subject to judicial review Edwards J in LGH v Minister for Justice Equality and Law Reform 2009 IEHC 78 held that the Minister had been wrong to take into account the fact that the applicant s two adult sons had relatively minor convictions for motoring offences in concluding that the applicant was not of good character 50 It does not appear from these cases that the courts generally regard the mere fact that the a person is applying for an important privilege Irish citizenship which he has no legal right to compel the State to grant him means that he enjoys inferior legal protection when pursuing his application Nor do I think that a distinction can be drawn for this purpose between compliance with the naturalisation conditions in s 15 1 a to e and the broader and more general discretion which the Minister enjoys under the section On the assumption that the applicant was in fact made aware of the Minister s reason for refusal there is no good reason why he should be prevented from seeking review of its lawfulness to the same extent as he would be entitled in relation to any alleged failure to comply with any of the statutory conditions 51 The extent of the obligation of the Minister to give reasons for his decision must be considered firstly in the context of the developing general principles of judicial review and secondly by reference to the particular statutory provision 52 The general principles of natural and constitutional justice comprise a number of individual aspects of the protection of due process The obligation to give fair notice and possibly to provide access to information or in some cases to have a hearing are intimately interrelated and the obligation to give reasons is sometimes merely one part of the process The overarching principle is that persons affected by administrative decisions should have access to justice that they should have the right to seek the protection of the courts in order to see that the rule of law has been observed that fair procedures have been applied and that their rights are not unfairly infringed 53 The appellant cites the decision of O Hanlon J in the High Court in State Lynch v Cooney 1982 I R 337 for his conclusion that if s 31 1 of the Broadcasting Authority Act 1960 were to be construed as had been proposed by the State in the High Court in that case the discretion given to the Minister once he has formed his opinion is an absolute discretion and that it is not open to the Court to examine whether there were any reasonable grounds for the formation of such opinion by the Minister the provision was in the view of the learned judge unconstitutional The section under consideration in that case did not speak of absolute discretion The Minister was given power to prohibit the broadcasting of material which in his opinion would tend to incite crime or undermine the authority of the State However it is much more material to the present case to note the different view taken in this Court to the altered position of the State as expressed by O Higgins C J at page 361 of the report The Court is of the opinion that s 31 sub s 1 of the Act of 1960 as amended does not confer on the Minister the wide unfettered and sweeping powers which have been alleged by the prosecutor The Court is satisfied that the sub section does not exclude review by the Courts and that any opinion formed by the Minister thereunder must be one which is bona fide held and factually sustainable and not unreasonable 54 There have been several High Court decisions considering the question of reasons for administrative decisions In The State Daly v Minister for Agriculture 1987 I R 165 a civil servant on probation had his appointment terminated pursuant to s 7 of the Civil Service Regulation Act 1956 Although in the words of Barron J he had never received even a whisper of reprimand or censure from anyone he received a letter terminating his appointment on the stated ground that the conditions of probation attaching to the probationary position had not been satisfied In the view of Barron J the section could not be construed as giving to the Minister power to act in any manner he pleases p 172 At page 172 echoing the language just quoted of O Higgins C J in one of the stronger judicial statements on the question of reasons he said Such powers may only be exercised in conformity with the Constitution The view of the Minister must be seen to be bona fide held to be factually sustainable and not unreasonable If no reasons have been given for the exercise of the power then this court cannot review the exercise of the power in the light of these criteria The court must ensure that the material upon which the Minister acted is capable of supporting his decision Since the Minister has failed to disclose the material upon which he acted or the reasons for his action there is no matter from which the court can determine whether or not such material was capable of supporting his decision Since the Minister continues to refuse to supply this material it must be presumed that there was no such material 55 International Fishing Vessels Ltd v Minister for the Marine 1989 I R 149 concerned the refusal by the respondent Minister to grant licences for two sea fishing boats the property of the applicant Blayney J held that It is common case that the Minister s decision is reviewable by the court Accordingly the applicant has the right to have it reviewed But in refusing to give his reasons for his decision the Minister places a serious obstacle in the way of the exercise of that right He deprives the applicant of the material it needs in order to be able to form a view as to whether grounds exist on which the Minister s decision might be quashed As a result the applicant is at a great disadvantage firstly in reaching a decision as to whether to challenge the Minister s decision or not and secondly if he does decide to challenge it in actually doing so since the absence of reasons would make it very much more difficult to succeed A procedure which places an applicant at such a disadvantage could not in my opinion be termed a fair procedure particularly where the decision which the applicant wishes to challenge is of such crucial importance to the applicant in its business So the practical result of the Minister s decision is that the applicant could no longer carry on its business in the State The giving of reasons by the Minister could in one case be of particular importance as it would enable an applicant to meet the grounds on which the licence had been refused and having done so re apply Sub section 6 a of s 222B provides that the Minister may refuse an application where it relates to a sea fishing boat which is owned by a body corporate and the Minister is not satisfied that the body corporate is under the control of beneficially owned by or under the control of and beneficially owned by a person or persons who or as may be appropriate each of whom is either a qualified individual or a qualified body If an application were being refused under this provision it seems to me that it would be manifestly unfair for the Minister not to make it known because the ground for control could be overcome by making changes in the control or ownership of the corporation and the party applying should not be deprived of the opportunity of doing this It seems to me accordingly that in any case in which the applicant is a corporation the Minister should be required to give reasons for his decision as otherwise the party applying would not know if the application was being refused under sub s 6 a or for some other reason 56 Neither of these decisions was concerned with a decision of the Minister to refuse a certificate of naturalisation However although they post dated the decision of Costello J in Pok Sun Shum v Ireland already cited they quite correctly did not treat that case as an authority for the general proposition that a decision maker is never under a duty to give reasons Costello J said There is no general rule of natural justice that reasons for the decisions of an administrative authority must be given 57 Whether there could be such a duty in the case of exercise of a particular statutory power he said Again the extent and scope of the rule of natural justice must depend upon the particular statutory function which the Minister or the State department is carrying out I think it is relevant in this connection to bear in mind that under the 1956 Act the Minister was conferring a benefit or a privilege on the applicant and that he was not issuing the licence to which someone having complied with certain conditions was entitled This is a case where even if an applicant complied with certain conditions the Minister could refuse the certificate Secondly in relation to the permission to remain in the State it seems to me that the State through its Ministry of Justice must have very wide powers in the interests of the common good to control aliens their entry into the State their departure and their activities within the State There must be given to the Minister wide discretion in this area It may be that an obligation to state reasons might be required by the rules of Natural Justice in cases where rights of appeal exist under Statute It is of course true that an application of Judicial Review to the Courts exists but this right of the courts to review decisions taken by administrative authorities does not of itself create an obligation in Natural Justice that reasons be stated for decisions 58 Costello J was dealing with a case of a non national before the enactment of the Refugee Act 1996 and the vast changes wrought to our legal landscape by refugee and asylum cases It is only the last two sentences in that passage which address the issue of giving reasons However the same learned judge had reason to return to that issue in a different statutory context in McCormack v Garda Síochána Complaints Board 1997 2 I R 489 In that case the applicant was challenging the decision of the respondent Board to take no further action on his complaint against a member of An Garda Síochána pursuant to s 7 3 of the Garda Síochána Complaints Act 1986 The applicant s complaint had been accepted by the Board and an Investigating Officer was appointed However the Board subsequently simply informed the applicant that it was of the opinion that neither an offence nor a breach of discipline had been disclosed and that no further action would be taken Before adverting to the remarks of Costello P regarding reasons it is important to note that at page 498 he said The Board arrived at an opinion that neither an offence nor a breach of discipline had been disclosed and having done so made a decision to take no further action in the matter The reasons for the decision were self evident it followed from the opinion of the Board had reached and there was no need for the Board to say so 59 Costello P thought that even in cases where there was no express duty to give reasons the failure to give reasons for a decision might furnish a ground for challenging an administrative decision That would be so in particular where the court might infer that no

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