Article 46 of the Constitution provides that any provision of the Constitution may be amended by way of variation, addition or appeal in the manner provided by the Article. It requires that the proposal for referendum must be first passed by the Oireachtas, in the same way as an act.
The amendment only takes effect on ratification by referendum. A referendum is passed if the proposal is approved by a simple majority of voters.
In the early years of the State, there were relatively few referenda. The only referenda between 1937 and 1972 were two which sought to change the electoral system, both of which were rejected. In the last 50 years there have been over thirty referenda.
Challenges to Wording
The courts have been reluctant to interfere with the referendum process. A challenge was made to the 8th amendment (incorporating the so-called right to life of the unborn child) referendum on the basis that the effect of the wording was unclear, so that the voters could not make a clear choice. The High Court rejected this challenge and emphasised that it had no jurisdiction to interfere with referenda. It rationalised that if a voter was dissatisfied with the terms of a referendum or didn’t understand it, he or she could simply not vote for it.
In a separate challenge to the same referendum, it was argued that the proposed amendment was invalid as the right was already recognised as an unenumerated right by the Supreme Court. It interpreted the making express of an implied right to be neither a variation, addition or appeal.
The High Court stated that it was in no way concerned with the terms of the proposal. This was a matter for the People.
The court was satisfied that a referendum might change the interpretation of a provision of the Constitution by the court. The High Court indicated that if the proposal conflicted with the Constitution, for example by incorporating multiple proposals instead of just one proposal, the courts could interfere and restrain the process.
The Supreme Court in the same case refused to interfere with the process entirely on the basis that it had no jurisdiction to interfere with a Bill other than under the Article 26 procedure. The court implied that it would not intervene in the referendum process as it did not involve review of a law.
A similar view was taken in a challenge to the referendum on the Maastricht Treaty (Treaty on the European Union). The Supreme Court refused to intervene in the process on the basis that a proposal to amend the Constitution cannot be inherently unconstitutional provided it complies with the procedure in the Constitution.
In a reference by President Mary Robinson of the Regulation of Information (Service outside the State for Termination of Pregnancies) Bill to the Supreme Court, an argument was made that the amendment to the Constitution on the distribution of such information in Ireland was itself unconstitutional, notwithstanding the Constitutional provision, on the basis that it conflicted with natural law. The courts refused to interfere on the basis that the Constitution is the supreme law of the land and that once an amendment had been passed, it could not interfere with it on the basis of invalidity.
Information and Public Money
The 1992 referendum on the Maastricht Treaty (Treaty on the European Union) was challenged by MEP Patricia McKenna on the basis of the failure of the State to provide factual information about the benefits and disadvantages of the Treaty.
In this first McKenna judgement, a challenge was made to the government spending public money on an advertising campaign that advocated a ‘yes’ vote on the Treaty on the European Union. The High Court took the view that the government could in principle use public money in supporting a particular vote if it believed it was in the national interest and that there was no requirement for the State or government to provide information to educate the public in the referendum process. It took the view that it was not a matter for the courts to adjudicate on the use of public funds for such purpose. The High Court took the view that the complaint was one done in the political rather than the Constitutional sphere.
In another challenge, Patricia McKenna challenged the spending of public money to advocate supporting the amendment of the Constitution to allow for divorce. The Dáil had allocated half a million pounds to fund a publicity campaign to advocate a ‘yes’ vote. The High Court followed the above judgments and did not interfere.
In the Supreme Court, the Chief Justice indicated that because of the importance of the Constitution as the fundamental law of the State and the crucial role of the people in adopting and amending it, any amendment must be in accordance with the Constitutional process. He indicated that the people are entitled to be permitted to reach a decision free from unauthorised interference by the organs of the State.
The Chief Justice said that the use of public funds to fund a campaign to influence the decision was an interference with the democratic process and the Constitutional process for the amendment of the Constitution. It was said to infringe on the concept of equality, which is fundamental to the democratic nature of the state. Other members of the Supreme Court agreed in different terms.
The court indicated that the government was not expected to remain neutral on a referendum. It could spend money informing people. However, it must do so on a non-partisan basis.
McKenna Judgment – Outcome Tainted?
The decision was given just before the divorce referendum, which was carried by very tight margins. The Supreme Court accepted that the referendum certificate could be challenged in principle if the court was satisfied that the unlawful use of state funds materially affected the outcome.
The Chief Justice indicated that the courts are not entitled to interfere with the will of the people as expressed in the referendum. However, it could intervene to protect the rights of the citizens to exercise their Constitutional rights freely and fairly. The court could interfere only if the result was materially affected by the alleged wrongdoing.
The referendum legislation contemplates such a procedure. In the circumstances, the court was not satisfied that the petition had met the requisite standard of proof. In practice, it is very difficult to show how the impeached actions influence the outcomes.
The McKenna principles were applied in another challenge concerning the allocation of political broadcasting time during the divorce referendum. Broadcasting legislation allowed political parties, most of whom were committed to supporting a ‘yes’ vote, to have one broadcast each. It allowed one non-party group opposed and one non-party group in favour. Accordingly, the time afforded to the ‘yes’ side was considerably greater than that of the null side. The Supreme Court held that RTÉ had acted unconstitutionally.
A further challenge to the divorce referendum on the basis that divorce was unconstitutional was rejected on the grounds that the provision prohibiting unconstitutional legislation is obviously not applicable to a proposal to amend the Constitution in accordance with its terms.
Discretion to Government
The same applicant (Mr. Riordan) attempted to challenge the referendum ratifying the British-Irish Agreement on the basis that the amendment was unconstitutional. It contained a number of amendments to give effect to the agreement and it was proposed 0nly to come into effect, upon the government declaring but the State was obliged to give effect to it under the British-Irish agreement.
The Supreme Count did not accept that this was unconstitutional. There is no reason in principle why the Constitution should not enact an amendment with conditions. This was necessary in circumstances where it would only take effect once cross-border bodies and power sharing became effective in Northern Ireland. The case emphasised that the courts would not interfere with the substantive content of an amendment.
Post Referendum Act
The courts appear willing in principle to consider a challenge to a referendum if it contains more than one proposal and therefore potentially breaches Article 46.4. However, the challenges to date have not been found to infringe on this principle.
A challenge was made to the 2002 referendum which proposed in effect to reverse the “X” case. The right to life of the unborn was to be protected in accordance with an Act that was to be passed within 180 days. That Act could then not be subject to amendment other than by referendum.
It was claimed that the proposal should be contained in the amendment itself and not in the form of another act. The High Court did not accept the argument. It indicated that the form of an amendment was entirely open.
Article 46 does not provide that the amendment must be in the relevant act. The Belfast agreement was effectively incorporated in a similar manner and was acceptable. The Supreme Court upheld the above approach.