The recent unsuccessful legal challenge to the outcome of the marriage referendum threw up some interesting points of discussion, and not all of them related to the outlandish nature of the arguments made by the petitioners. From a constitutional perspective, the real talking point was the fact that the Bill to amend the Constitution was signed into law before the Supreme Court denied leave for a final appeal against the earlier decisions of the High Court and Court of Appeal denying leave to bring a referendum petition. The Supreme Court made a point of expressing displeasure at this sequence of events, citing “the respect due to the legal process by other organs of State. In the event, in this case there was no adverse consequence. However, in another situation very serious constitutional consequences might have occurred had this Court considered it appropriate to grant leave on any grounds when the certificate had become final and the Constitution amended.”
Were the Court’s remarks well founded, and against whom were they directed? On the one hand, the challenge to the outcome of the referendum, and the subsequent appeal against the dismissal of this challenge, were clearly unmeritorious. There was not a semblance of proper legal argument and it was an absolute certainty that the Supreme Court would deny leave to further appeal. Notwithstanding this, it clearly would have been better had the Supreme Court issued its ruling before the provisional certificate became final and the Bill was signed into law. The questions is, who should have waited, and did they even have the discretion to wait?
There were three persons involved in the process that led to the Bill being signed into law. As the person who signs the Bill, the President is the obvious one. However, the President only signs a constitutional amendment into law once the referendum process has been completed and certified. The latter is the function of the referendum Returning Officer. In the event of an application being made to the courts to challenge the result of a referendum, then—apart from the judges hearing the application—the Master of the High Court also becomes involved: it is the function of the Master to inform the Returning Officer of the outcome of any court applications.
The comments made by the Supreme Court referred to the ““the respect due to the legal process by other organs of State”, suggesting its ire was directed outside of the courts system. However, the relevant provisions of the law do not seem to give any discretion to either the President or the Returning Officer; instead, they envisage a situation where the relevant function is to be performed automatically once a designated trigger event has occurred. It is strongly arguable that neither individual could have legally declined to act.
To begin with the President, Article 46.5 of the Constitution provides:
“A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law.”
The mechanism through which the President becomes satisfied that the amendment has been duly approved by the People is the Referendum Certificate. Once the Certificate has been issued, the wording of Article 46.5 is mandatory – “shall be signed by the President forthwith”. It seems reasonable to suggest that the president had no choice but to sign, and that there is no scope for him to question the Referendum Certificate once the process set out in the Referendum Act has been followed. Indeed, even if the President had delayed, the Supreme Court’s point about the appeal being moot as the provisional certificate had become final would still be valid.
The Returning Officer has a similarly reasonable argument. Section 40 of the Referendum Act 1994 provides:
(2) As soon as may be after signing the provisional referendum certificate, the referendum returning officer shall publish in Iris Oifigiúil a copy of that certificate together with a statement that such certificate will become final and incapable of being questioned when the officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every referendum petition so presented has become null and void.
(4) When a provisional referendum certificate has been confirmed or is deemed to have been confirmed by the High Court and is returned to the referendum returning officer with a statement of the fact of such confirmation endorsed thereon in accordance with this Act, the referendum returning officer shall send a copy of such certificate to the President and the Taoiseach.
Again, note the mandatory language – the certificate “will become final and incapable of being questioned when the officer is informed by the Master of the High Court … that no referendum petition has been duly presented in respect thereof”. The Returning Officer “shall send a copy of such certificate to the President and the Taoiseach” once this has happened. There is no scope to question the information provided by the Master.
There is some scope for contrast with the position of the Master of the High Court. Section 41 of the Referendum Act 1994 provides:
Subject to the provisions of section 58, where—
(a) application for leave to present a referendum petition in relation to a provisional referendum certificate has not been made to the High Court within the time limited by section 42(2), or
(b) the High Court has refused all such applications made to it within the said time, or
(c) no referendum petition has been presented in relation to the provisional referendum certificate within the time limited by section 44 , or
(d) every referendum petition so presented has, under section 44(4) or 50(3), become null and void,
the Master of the High Court shall forthwith notify the referendum returning officer in writing accordingly.
In this case, the governing provision is paragraph (b) which deals with refusal of leave to present a referendum petition (rather than paragraph (d), which deals with very specific reasons for rejecting the application rather than a refusal of leave to apply). Strangely, the provision is silent on the position of appeals. Paragraph (b), which refers to the High Court having refused all such applications, presumably falls to be interpreted as only applying once any appeal against the High Court decision has been rejected.
Looking at the chronology of the case, the Master of the High Court sent notification to the Returning Officer on August 24. This was already 24 days after the Court of Appeal order had been perfected. There were only four more days during which the applicant could have sought leave to appeal to the Supreme Court. If it was acceptable to wait 24 days before sending notification, then surely it would have been acceptable to wait 28 and see whether such an appeal would be lodged?
These comments are not intended to be critical of the Master of the High Court as such; the Master commented, not unreasonably, that the Referendum Act had not been updated to take account of the new courts structure resulting from the Court of Appeal. The point is more that the Supreme Court clearly intended to criticise individuals outside of the courts system; close inspection reveals that such criticism is arguably misplaced.
Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw