THE HIGH COURT
2002 63 JR
JUDICIAL REVIEW
BETWEEN
DENIS RIORDAN
APPLICANT
AND
GOVERNMENT OF IRELAND, AN TAOISEACH, MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, DAIL EIREANN, SEANAD EIREANN, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr. Justice William M. McKechnie delivered the 14th day of February 2002
1. Mr Riordan, the applicant above named, having obtained the prior permission of the Supreme Court as required by that Court's Order dated the 23rd day of October 2001 and made in proceedings entitled Denis Riordan Applicant, and An Taoiseach Bertie Ahern TD and others Respondents, now seeks from this Court leave to apply by way of an application for Judicial Review, for the reliefs claimed in the statement grounding the application and he does so on foot of the grounds therein mentioned. On moving this ex parte application on Friday last, the 8th of February, I decided in the exercise of my discretion, that the Respondents so named should be put on notice of the making of this application and fixed the following Tuesday, as the return date, for that purpose. Having been served with the required documentation the application for leave was opposed and it is in respect of that which I presently give judgment.
- In all, between Declarations, Orders of Certiorari and other Orders, there are about 20 reliefs sought and in support of their granting there are approximately 30 grounds relied upon. The verifying Affidavit which deals with these grounds also contains much of the legal argument which Mr Riordan advanced in aid of the reliefs claimed. No responding documentation has been filed with the opposition being based solely on matters of law and on legal argument.
- 3. The challenge so mounted by the Applicant, has, at its core, the legality of the Twenty Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001. In broad terms what is sought is:-
(a) A declaration that the Bill, in the manner in which it proposes to amend Articles 15,26,27 and 40 of the Constitution, is repugnant to the mandatory provisions of Article 46 thereof,
(b) A declaration that Article 46, being the only provision under which the Constitution can now be amended, does not authorise or permit what has been described as a conditional amendment such as that as contained in the said Bill.
(c) A declaration, that if approved by the people at referendum, the proposed amendment to Article 40, by the insertion of subsections (4) and (5) to section 3 thereof, will take effect forthwith upon the said Twenty Fifth Amendment of the Constitution Bill being enacted into law,
(d) A declaration that the amendment last mentioned, if so approved by the people and if so enacted into law, will continue to have effect and be part of the law, notwithstanding any failure by the Oireachtas to enact into law, within the specified period of 180 days, the proposal as contained in the second schedule to the said Bill, and
(e) an Order of Certiorari quashing the decision of both Dail Eireann and Seanad Eireann in passing the aforesaid Twenty Fifth Amendment Bill.
In addition Mr Riordan seeks a declaration that the appointment of Robert Molloy T.D. to be Minister of State to the Government was and is illegal.
- The above, of course, is only a summary of what is claimed. The Applicant also alleges that if passed into law, the Bill will result in the Constitution being mutilated, that the Oireachtas is specifically prohibited from enacting into law the said proposals as set forth in the second schedule, that in passing the Twenty Fifth
- Amendment Bill both Houses of the Oireachtas acted unreasonably, negligently, deceptively, and ultra vires and that, if the proposed constitutional amendment should be made unconditional, it will not reverse the decision of the Supreme Court in the "X" Case. In addition declarations are sought against An Taoiseach, Bertie Ahern T.D., arising out of his speech delivered on the 2nd day of October 2001 and lastly Mr. Riordan also wants this Court to compel the Government to
immediately advise the people that the amendment Bill is seriously flawed and is repugnant to the Constitution.
- Article 46 of the Constitution reads as follows:-
"Article 46
1. Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided by this Article.
2. Every proposal for an amendment of this Constitution shall be initiated in Dail Eireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.
31. Every such Bill shall be expressed to be "An Act to amend the Constitution ".A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.
4. 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 Twenty Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, passed by both Houses of the Oireachtas, is headed "AN ACT TO AMEND THE CONSTITUTION", and having recited that the Constitution may be amended in the manner so provided by the said Article 46, goes on to confirm that the proposal within the Bill is to amend that said Article. The Bill has two Sections and two Schedules. Section 1 and the First Schedule contain the content of the suggested amendment with the Irish version being set out in Part I and the English text in Part 2 of that Schedule. This section also decrees that this amendment should be inserted after section 5 of Article 46, in effect creating a new section 6. In its entirety the proposed amendment, taking the English language version only, is, in the terms following:-
"6 1 ° Notwithstanding the foregoing provisions of this Article, Article 40 of this Constitution shall be amended as follows: -
The following subsections shall be added to Section 3 of the English text:
"4° In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act 2002.
5° The provisions of section 2 of Article 46 and sections 1, 3 and 4 of Article 47 of this Constitution shall apply to any Bill passed or deemed to have been passed by both Houses of the Oireachtas containing a proposal to amend the Protection of Human Life in Pregnancy Act, 2002, as they apply to a Bill containing a proposal or proposals for the amendment of this Constitution and any such Bill shall be signed by the President forthwith upon his being satisfied that the Bill 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. "
2° If a law, containing only the provisions set out in An Dora Sciedeal - The Second Schedule to the Twenty Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Act, 2001, is enacted by the Oireachtas, this section, other than the amendment of Article 40 of this Constitution effected thereby, shall be omitted from every official text of this Constitution published thereafter, but notwithstanding such omission this section shall continue to have the force of law.
3° If such a law is not so enacted within 180 days of this section being added to this Constitution, this section shall cease to have effect and shall be omitted from every official text of this Constitution published thereafter.
4° The provisions of Articles 26 and 2 7 of this Constitution shall not apply to the Bill for such a law "
- There then follows in the second schedule to the Bill the text of the proposal which is central to the entire referendum. It is headed "AN ACT TO PROTECT HUMAN LIFE IN PREGNANCY, TO REPEAL SECTIONS 58 AND 59 OF THE OFFENCES AGAINST THE PERSON ACT, 1861, AND TO PROVIDE FOR RELATED MATTERS". Section 1, in part the definitive section, inter alia, defines abortion and in subsection (2) has a significant provision dealing with medical procedures. Section 2 prohibits the carrying out of abortion in this State and for any, who might breach this provision, a criminal sanction on a trial on indictment of 12 years and or a fine, is provided. Section 3 provides for conscientious objections in the context of the medical procedure referred to, and finally Section 4 preserves the freedom to travel and the freedom to obtain or make available within the State, subject to law, information relating to services lawfully available in another State.
- Mr Riordan, who moved his application in person, made the following submissions:-
1. That since the Twenty Fifth Amendment Bill, is by its express wording, a Bill to amend Article 46 of the Constitution, it cannot in addition lawfully contain other proposals to amend further articles of the Constitution which in this instance it seeks to do. That this is its clear intention, is evident from the opening line of the new section 6, where having stated that "notwithstanding the foregoing provisions of this Article", the section then goes on to amend Article 40, by adding two new subsections to section 3 thereof. Reference is later made also to Article 47 and Articles 26 and 27. It is claimed that by adopting this method of amendment, which also affects Article 15, a citizen is effectively being denied the right to consider and vote separately on each distinctive amendment. This it is submitted is not permitted by Article 46.
2. That Article 46 is incapable of being invoked to achieve what is in reality a conditional amendment to the Constitution. This arises in that, on at least one reading of the proposed amendment, the same will not become effective unless and until, within the specified period of 180 days, the Oireachtas shall pass and enact, as a law, the proposals set forth in the second schedule to the Bill. Unless that condition is satisfied the inserted Section 6, shall, by virtue of subsection 3°, cease to have effect.
3. That forthwith upon the Twenty Fifth Amendment Bill becoming law, as it will if and when Articles 46 and 47 and the Referendum Acts 1992-1998 have been complied with, the amendment to Article 40 will have immediate effect and will continue to be part of our constitutional law, even if the Oireachtas does not enact into law the aforesaid proposal as contained in the second schedule to the said Bill. This, and the mechanism of amending Articles 15,26,27 and 47 will result in great inconsistency and in what has been described as a mutilation of our Constitution which it is alleged is deliberate and intentional.
4. That in proposing this Bill the Government is in direct violation of Article 15.5.2 of the Constitution which read:-
"The Oireachtas shall not enact any law providing for the imposition of the death penalty",
5. That because the English text of the Bill is different from the Irish text of the Bill the same is Constitutionally flawed, and finally
6. Though related, but also as an independent ground it is submitted that, as the Government is not a Department of State, the appointment of Robert Molloy T.D. as Minister of State to the Government of Ireland is illegal.
- On behalf of the Respondent, Mr Fitzsimons SC opposes leave on the basis that the test as set out in G -v- The Director of Public Prosecutions and Anor 1994 1IR 374 has not been satisfied and secondly, that the application, as required by Order 84 Rule 21 of the Rules of the Superior Courts, has not been promptly made. This second ground was not proceeded with, when it was indicated that Mr Riordan had attempted to move his application on the 21st of January 2002 but was unable to do so because, at that time, he had not obtained the permission of the Supreme Court which is referred to at paragraph 1 above. In essence the Respondents claim that all grounds relied upon have been authoritatively decided against the applicant by both this Court and the Supreme Court and accordingly that he has failed to demonstrate the existence of an arguable case.
- In G -v- The Director of Pubic Prosecutions andAnor. supra, the Supreme Court, through the judgments of Finlay CJ and Denham (J), set out what an applicant must prove in order to obtain from this Court leave to institute proceedings by way of Judicial Review. At p. 377 of the report, the Chief Justice said:-
"/t is, law satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the Court to issue Judicial Review proceedings. An Applicant must satisfy the Court in aprimafacie manner by the facts set out in his Affidavit and submissions made in support of his application of the following matters:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the Affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of Judicial Review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) ……………………………………
(e) …………………………………
These conditions or proofs are not intended to be exclusive and the Court has a general discretion since Judicial Review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an exparte application..."
- At p. 381 under the heading of "Relative Burdens of Proof', Mrs Justice Denham had this to say:-
"The burden of proof on an Applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts Order 84 Rule 20 is light. The Applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made exparte to a Judge of the High Court as a judicial screening process, a preliminary hearing to determine if the Applicant has such a stateable case ".
Having referred to the decision of Lord Diplock in R-v- Inland Revenue Commissioners, ex parte National federation of Self Employed and Small Business Ltd. 1982 A.C.617, the learned judge continued
"I am satisfied that a like burden of proof applies in this jurisdiction, at the initial exparte stage, as stated by Lord Diplock. It is a preliminary filtering process for which the Applicant is required to establishment a prima facie case ".
- As is clear from the extracts above recited and from the context in which such observations were made, the test as laid down was intended to apply where the leave application was moved ex parte and not, as here, when it was heard on notice. An issue thus arises as to whether a Court, having heard both sides to the intended proceedings, should apply, at the leave stage, a standard higher than that specified in the G case. A threshold perhaps like that identified by Glidewell LJ. in Mass Energy Limited -v- Birmingham City Council 1994 ENV. L. R. 298 or by Keene J. in R -v- Cotswold District Council ex parte Barrington Parish Council 75 P. and C.R. 515. This question has been touched upon in several judgments of this Court including Gorman -v- Minister for the Environment & Others. H. C..U/R, 7/12/00, Halpin -v- Wicklow County Council. H. C, U/R, 15/3/01 and in Gilliean -v- Governor ofPortlaoise Prison. H. C. U/R. 3/8/01. However, and notwithstanding some debate on the point, no definitive view has emerged as to whether there should a higher standard and if so what that should be. Accordingly in the circumstances, I purpose to continue to apply the test as laid down by the Supreme Court in the G case.
- There is no doubt, and no dispute in this case, but that since the transitional period has passed during which Article 51 could be invoked, the only method by which the Constitution may now be amended, whether by way of variation, addition or repeal, is that as provided for by Article 46 thereof. Any such proposal must, in accordance with Section 2 of that Article, must be initiated in Dail Eireann as a Bill and having been passed or deemed to have been passed by both Houses of the Oireachteas, shall then be submitted by Referendum, in accordance with Referendum law, to the people for decision. If passed in the manner authorised by Article 47 and on being satisfied that the provisions of Article 46 have been complied with, the Bill is then signed by the President and duly promulgated as a law.
- In respect of such a Bill, the Court's power to embark upon any review thereof has been considered in several cases over the past number of years. Roche -v- Ireland. H. C, U/R, 17/06/83, was one, as was Finn -v- The Minister for the Environment 1983 IR 154. In the later case, the Supreme Court, in summarily rejecting an appeal from the Order of the High Court, said, through the judgment of Chief Justice O'Higgins, that:-
"the judicial power to review legislation on the ground of constitutionality is confined (save in cases to which Article 26 applies) to enacted laws. Save in these excepted cases, there is no jurisdiction to construe or review the constitutionality of a Bill, whatever its nature. The Courts have no power to interfere with the legislative process. For this reason the Plaintiff'lacks standing to maintain these proceedings and has no cause of action".
See also Slatterv -v- An Taoiseach 1993 IR 286 and in particular Hederman J., when he said:-
"The real point in this case is to ask this court to prevent the operation of legislative and constitutional procedures which are in train. This is something the Court has no jurisdiction to do. What the Defendants are doing is implementing the decision of the Dai I and the Seanad";
this view was supported, as follows by McCarthy J. at p. 301 of the Report:-
"In my judgment, the application made by the Plaintiffs has no foundation whatever; to grant an Order such as sought would a wholly unwarranted and unwarrantable intervention by the judiciary in what is clearly a legislative and popular domain ".
On these authorities it has been accepted by Mr. Riordan, and the case so proceeded, that the content or text or substance or merit of the proposed amendment was immune to legal challenge and thus to legal scrutiny. Accordingly, what was sought to be impugned was an alleged failure to comply with the mandatory provisions of the Constitution and/or an allegation that such provisions, having been incorrectly interpreted, were being applied in an ultra-vires way.
- The theme of judicial intervention, on a Bill to amend the Constitution, was again taken up by the Courts in Riordan -v-An Taoiseach (No.l) 1999 4IR 321. In that case the Fifteenth Amendment of the Constitution Bill 1995 contained a proposal to amend Article 41.3.2° of the Constitution by permitting a Court, in certain circumstances, to grant a dissolution of marriage. That proposal, by Referendum, was passed by the people in November 1995. Having survived a challenge to the referendum result, the Bill was signed and promulgated by the President as law on the 17th June, 1996. Mr. Riordan then sought to challenge that law. He did so on several grounds. He appealed against the High Court Order dismissing his challenge on all such grounds. At p. 335 of the report, Mr. Justice Barrington giving the unanimous judgment of the Supreme Court said:-
"The people have set out in the Constitution the principles and system of government which they wish to adopt. These can only be changed by the system for amending the Constitution set out in Article 46.
Ordinary legislation is a matter for the President and for parliament. The courts only have a role if the President seeks the opinion of the Supreme Court as to whether a bill is repugnant to the Constitution or if somebody, ex post facto challenges legislation formerly enacted into law on the basis that it is invalid as violating the Constitution.
The procedure for the amendment of the Constitution is set out in Article 46. This too is a form of legislation. But it is different in kind from ordinary legislation. Whereas ordinary legislation requires the participation of the President and the two houses of parliament, a constitutional amendment requires the co-operation of the President, the two houses of parliament and the people. It is a procedure in which parliament proposes and the people dispose. The people either approve of the proposal, and it is carried, or disapprove of the proposal in which event it is defeated. The role of the President and the courts is simply to ensure that the proposal is properly placed before the people in accordance with the procedure set out in Article 46 and that the referendum is properly conducted as provided by law. They have no function in relation to the content of the proposed referendum. This is a matter for the people. There can be no question of a constitutional amendment properly placed before the people and approved by them being itself unconstitutional. That is why the President has no power to refer to the Supreme Court a bill containing a proposal to amend the Constitution for an opinion on it constitutionality. A proposed amendment to the Constitution will usually be designed to change something in the Constitution and will therefore, until enacted, be inconsistent with the existing text of the Constitution, but, once approved by the people under Article 46 and promulgated by the President as law, it will form part of the Constitution and cannot be attacked as unconstitutional. Where the President promulgates a bill to amend the Constitution duly passed by the people in accordance with Article 46 "as a law" within the meaning of Article 46.5, she is promulgating it as part of the basic law or "bunracht" because it is an amendment to the Constitution duly approved by the people.
Such "law" is in a totally different position from the "law " referred to in Article 15.4 of the Constitution which refers only to a law "enacted by the Oireachteas ".
Whilst the above was primarily dealing with and rejecting a submission that a constitutional amendment, which had been promulgated into law by the President, was capable of judicial challenge on the grounds of it being repugnant to the Constitution, nonetheless the passage, as quoted, reasserts quite affirmatively the limitations on a Court when asked to intervene in a Bill to amend the Constitution.
- Another case, also involving the Applicant, is more directly on point and is reported under the title Riordan -v-An Taoiseach (No. 2) 1999 4IR 343. That case involved a challenge to the Nineteenth Amendment of the Constitution Bill 1998 which Bill, having been passed by both Houses of the Oireachteas had a Referendum date of the 22nd May of that year assigned to it. The Bill proposed to amend Article 29 of the Constitution which on its face was un-objectable, but issue was taken with section 7(3) of the schedule which read:-"If the Government declare that the State has become obliged, pursuant to the
Agreement, to give effect to the amendment of this Constitution referred to therein, then notwithstanding Article 46 hereof, this Constitution shall be amended asfollows:-
(1.) The following Articles shall be substituted for Articles 2 and 3 of the Irish Text".
There then followed in the event of the Government making the declaration referred to the text of the proposed new Articles to replace the then existing Articles 2 and 3. The argument advanced by Mr. Riordan was firstly that since the Bill proposed an amendment to Article 29, that Article 29 and none other could be amended, secondly that in purporting to amend Articles 2 and 3, the mandatory provisions of Article 46 were being dispensed with, thirdly that there was no power in the people to approve of what he claimed, was in effect, a conditional amendment to the Constitution, and finally, that if the aforesaid condition had been satisfied, which it would if a power sharing executive and cross border bodies were established, then a further Referendum would be necessary so as to amend the said Articles 2 & 3. Kelly J., in a judgment given prior to the Referendum dismissed the proceedings as did the Supreme Court in it's judgment which was delivered post the Referendum.
- At p. 354 of the report Barrington J., again giving the unanimous decision of the Supreme Court said:-
"The applicant has failed to understand the problem which confronted the Government in relation to the Belfast Agreement. That agreement imposed reciprocal obligations on the various parties to it and each party wished to be reassured that the other parties would cany out their respective obligations. For instance the Irish Government undertook to have Articles 2 and 3 of the Constitution amended but only on the basis that the British Government and Unionist Parties to the Agreement would establish the power sharing executive and the cross boarder bodies contemplated in the Agreement. On the other hand the British Government and the Unionist parties did not wish to establish the power sharing executive and the cross boarder bodies only to find that the proposal to amend Articles 2 and 3 was defeated in a constitutional referendum.
The text of the new s. 7 is a clever drafting device designed to resolve this problem. By means of it the people have given a conditional assent to the amendment of Articles 2 and 3 of the Constitution. The people have a sovereign right to grant or withhold approval to an amendment to the Constitution. There is no reason therefore why they should not, provided the matter is properly placed before them, give their approval subject to condition.
It is quite wrong to suggest that the people have delegated to the Government the right to amend the Constitution. This is not so. The people have consented to an amendment to the Constitution subject to the happening of a particular future event. That future event is that the Government should have made the declaration referred to in section 7(3). Section 7(3) provides that if the Government makes that declaration "then, notwithstanding Article 46 hereof, this Constitution shall be amended as follows...". But it is the people, not the Government who are speaking in the passage quoted. The reference to "notwithstanding Article 46 hereof, is merely an indication that the people have consented to the making of the amendment on the happening of the event referred to and that they do not wish to be consulted again. Finally it is true that the amendment effected by the Nineteenth Amendment of the Constitution Act, 1998 is, inform, an amendment to Article 29 of the Constitution and not an amendment to Articles 2 and 3. But it is important to remember that the Nineteenth Amendment to the Constitution having been approved by the people, and promulgated by the President as law now forms part of the Constitution. The amendment is now Article 29.7 of the Constitution. The proposed new text of Articles 2 and 3 are now lying - as it were in the form of an escrow - in Article 29 of the Constitution. But they are therefor all to see and on the happening of the anticipated future event - that is to say the Government making the declaration contemplated by Article 29.7.3° - the draft Articles 2 and 3 will, by virtue of the internal workings of the Constitution itself, move to replace the existing Articles 2 and 3 ".
On this reasoning, having declared that Mr. Riordan's submissions were devoid of substance his appeal was dismissed.
- The Act in the above case, though different in detail, is nevertheless in principal, similar in a number of crucial respects to the present Bill. There are certain distinctive features in each amendment which are common to each other. Firstly, the Nineteenth Amendment Act in form, proposed an amendment to Article 29 only, with the Twenty Fifth Amendment Bill proposing in form, an amendment to Article 46 only. Secondly, the Nineteenth Amendment Bill, having been promulgated by the President as a law, was for effect, conditional on a subsequent declaration of Government, with the Twenty Fifth Amendment Bill if promulgated as a law, for effect being conditional on the enactment, within the specified period, of the Protection of Human Life in Pregnancy Act, 2002. Thirdly without a second Referendum, but on the declaration being made, the original Articles 2 and 3 were repealed and in their place was substituted the new Articles 2 and 3: in this case without a second Referendum, but on the condition being met, the amended Article 40.3 becomes operative in that the new subsections 4° and 5° can then, for the first time, feed on the 2002 Act, and finally, both the 1998 Act and this Bill, notwithstanding Article 46 of the Constitution, proposed their respected amendments in the manner and with the mechanism as provided.
- In relation to the matters above identified, I cannot see any real distinction in law between the Nineteenth and Twenty Fifth Amendment Bills. It is quite clear that with the former the new Articles 2 and 3 would be inserted only, if on being satisfied that a power sharing executive and cross boarder bodies were established, the Government, as it undertook to so do under the Belfast Agreement, made the declaration as stated. In the absence of such a declaration no such amendments would be effective. Therefore, notwithstanding the success of the Referendum and the passing into law of the Act on the 3rd day of June, 1998, the trigger mechanism by which the new Articles 2 and 3 could be inserted into the Constitution, was this declaration.
- In this case the intention of the amendment, if passed, is that the proposal in the second schedule should be considered, and if thought fit passed by both Houses of the Oireachteas within the time specified. If that happens, the amendment as contained in the Bill then becomes unconditional. If, at the end of 180 days there should not exist the Protection of Human Life in Pregnancy Act, 2002, then subject to the observation made at paragraph 25 below the inserted section 6 to Article 46 shall cease to have effect. This being the situation I cannot see, in principle, any difference between this conditional aspect of the Twenty Fifth Amendment and the conditional aspect of the Nineteenth Amendment. Moreover, the Bill last mentioned, whilst headed a Bill to amend Article 29, in effect also, albeit conditionally, amended Articles 2 and 3. What is the difference in legal principal, one might ask between that and this Bill which, though headed as a proposal to amend Article 46, also aims to amend several other Articles of the Constitution. I cannot in substance or in form see any difference of materiality between both, certainly not a difference which would justify this Court in attempting to distinguish Riordan (No.2) from the present case.
- Again, following the reasoning in Riordan (No. 2). even though the heading of the Bill is confined to Article 46, once one reads the suggested amendment it is abundantly clear to all that the proposal expressly refers to adding two new subsections to Article 40.3. Therefore a citizen knows that if he or she votes in favour, then the conditional effect of the amendment would, or at least could, have a direct impact on Article 40.3. He or she is perfectly free to say yes or no and accordingly can express a personal and individual view thereon. In this way the right to vote at referendum, given by Article 47.3 and Article 16.1.2° of the Constitution is satisfied. It must be remembered that the aforesaid grounds of challenge are unrelated to the merits of the proposal as they are to its precise meaning. It is the method of change that is at issue.
- The Applicant seeks to distinguish the above case from the present, on the basis that by the time the Supreme Court gave judgment in (No. 2) the envisaged Referendum had in fact taken place. As the dates show, this indeed was the situation, though the judgment of Kelly J. was given on the 20th May just prior to the Referendum date. Notwithstanding the fact that the Bill had been promulgated into law when the Supreme Court gave its decision, it is abundantly clear from the judgment of Barrington J., that this point of difference had no bearing whatsoever on the view of that Court. At p. 353 of the report the learned Supreme Court Judge, in context, said:-
"at the same time the Court recognises that there is a certain consistency in the case the applicant has been making throughout, and the Court will, therefore, attempt to isolate the applicant's real grievance".
Therefore I believe that this decision is a direct authority on the method and type of amendment that is available under Article 46, which includes, what is described as a conditional amendment as well as permitting, through this drafting device, the amendment of more than one Article, though the Bill in question should not be so headed.
- In the recent past Kelly J., on the 1/2/2002 gave judgment in Morris andAnor -v- The Minister for the Environment and Local Government H. C, U/R. That case dealt explicitly with the very amendment the subject matter of this application and did so on grounds which required the Court's consideration of Article 46. The first ground submitted on behalf of the Applicants was that, except in cases of proposed repeals, Article 46 required that any proposed variation or addition to the Constitution should be contained in the body or text of the Constitution itself and could not have a separate existence, as in the instant case, namely in a proposed Act of the Oireachteas. That submission was rejected by Kelly J. on both the wording of Article 46 itself and on the authority of Riordan (No. 2). The second ground relied upon was that the Twenty Fifth Amendment Bill contained two proposals, being an envisaged Act of Parliament as well as a Constitutional amendment. This, it was claimed was repugnant to Article 46.4 of the Constitution. That argument, which required an interpretation of "any other proposal" in section 4, was not advanced or debated in this case and consequently it is not necessary to pass any comment thereon.
- Earlier in this judgment, I have referred on a number of occasions, to the content of the second schedule to the Bill, as a proposal. I did so only to avoid words like Bills or Acts which come about as a result of the legislative power of the Oireachteas. However less there should be any doubt about such references, the same were not intended in any way to describe the second schedule as a "proposal", as that word is used in Article 46. There is a very clear distinction between the Twenty Fifth Amendment Bill and the second schedule. As previously stated, if passed in accordance with Article 47 and the relevant provisions of the Referendum Acts, including its promulgation by the President as a law, this Constitutional Bill itself, but not the second schedule will have the force of law. Such a situation would leave untouched and unaffected the status of the second schedule. That status remains without any force or recognition in law. For the proposal in the schedule to become part of our domestic law then the normal and standard legislative process contained inter alia, in Articles 15,20 and 25 of the Constitution must be applied. Both Houses of the Oireachteas must pass or be deemed to have passed that second schedule as an Act, and if so on presentation, must, as Articles 27 and 28 do not apply to such a bill, be signed by the President and promulgated by her as a law in accordance with Article 25.1 of the Constitution. Even then a commencement order by An Taoiseach is required. Such a law is a statute law and has attached to it, a status so commensurate, which evidently is one subordinate to a Constitutional status. But until such time as that process has been completed or the specified period expires, whichever first occurs, the proposal in the second schedule will have no force of law, quite unlike the Constitutional Bill, which if passed by the people and promulgated by the President will immediately have the force of law. So there is a clear distinction between what might become the 25th Amendment of the Constitution (Protection of Human Life in Pregnancy) Act, 2001 and what might become the Protection of Human Life in Pregnancy Act, 2002.
- Mr. Riordan is I think correct to say that if and when the Constitutional Bill obtains the force of law, parts of the proposed amendment will have immediate effect. Such parts are the inserted subsections 4° and 5° to Article 40. 3. These will have such effect in the sense that they will immediately attach to and form part of Article 40 and will so remain even if the envisaged 2002 Act is not passed into law within the specified period. This he says will result in the Court having to protect the life of the unborn, in the womb, in accordance with Article 40.3.4 of the Constitution, which in turn means that the court must identify some document containing the second schedule and must give effect to it. This, in my view is a mistaken interpretation of the amendment. As I have said above, the second schedule is legally inoperable until it becomes what is described, in the new section 6.4° as "The Protection of Human Life and Pregnancy Act, 2002 ". If it never reaches that stage then it is incapable of having a functional presence simply because there will be no such Act, and therefore, no provisions thereof, by which the life of the unborn can be protected. There will not exist any foundation upon which the said section 6. 4° can independently survive. Whilst therefore these new sections may continue to be part of Article 40.3 and whilst this may not be very elegant to a future enthusiast of the Constitution, nevertheless I cannot see anything unlawful in this result, whether intended or otherwise.
- The next ground of challenge is that as the English text of the Bill is not identical with the Irish text then the same is constitutionally flawed. This argument is not based on any allegation that both text have a different meaning but rather is based on a belief that since Part 1 of the First Schedule is in Irish only, it is not identical with Part 2 which is in the English language only. Article 8 provides for a first official language, a second official language and thus for two official languages. Under Article 25.5 of the Constitution it is quite clear that the text of the document can exist in both languages, there being an express provision in Article 25.4 by which any conflict between the text of either language can be resolved. I cannot, in these circumstances see how there is any substance in this point.
- The applicant also argues that if this Bill, should be enacted into law, the result for the Constitution will be a multiplicity of unspecified inconsistencies, which will cause a mutilation of this historic document. As a separate, though related point, it is also claimed that if the Bill is enacted it will not reverse the decision of the Supreme Court in the "X" case. As has been the situation, not only with the 1937 Constitution but also with its predecessor, passed in 1922, the judicial arm of Government has always been and remains the appropriate forum to decide upon and resolve any inconsistencies that might arise as between one provision of the Constitution and another, and it is also the body which has the responsibility of declaring, what effect any amendment of the Constitution might have on existing case law. In addition I cannot see anything objectionable in the proposal that if the 2002 Act, should become enacted and have the force of law, any future amendment to it will have to comply with the relevant provisions of Article 46 and 47; nor can I, given the principles of law above stated, hold with the applicant when he impugns the new section 6 4°. Moreover, his reliance on Article 15.5.2 (see par. 8 above) is based on a fundamental misreading of the present Bill.
- Lastly, Mr. Riordan also seeks a declaration arising out of a speech delivered by An Taoiseach on the 2nd November, 2001, and in addition wishes this Court to compel the Government to immediately advise the people that the Bill is seriously fraud. Quite evidently in my view there is nothing whatsoever to either of these points.
- Therefore, in conclusion, on the reliefs sought and on the arguments advanced in support of such reliefs, I would be of the view that Mr. Riordan has failed to make out any arguable case in law and consequently has failed to meet the threshold identified in the G case. I would therefore refuse leave.
- There remains one final ground of challenge which is that the announcement on the 26th June, 1997 that Robert Molloy TD was to be Minister of State to the Government as well as being Minister of State to the Department of the Environment was and is unlawful and illegal. A similar argument was advanced in Riordan (No. 2) with regard to the appointment of Ms. Eithne Fitzgerald. At p. 340 of the reported judgment the Supreme Court dismissed this part of the applicant's claim. Likewise with respect I would equally do so.
