Amendment court challenge

who is this · 29-06-2015 4:22am #1

Government concerned legal challenges could delay legislation until 2016

From today's IT. I'm normally clued in on stuff like this but I have to admit I haven't the faintest clue what's going on with this one.

Does anyone know, if that other guy Lyons is appealing it or not? There's a case listed for Thursday in Court of Appeal but no one is saying he's appealing it (is it just an appeal against the costs order?)
Also, is it the case (as I presume) that when the appeal is inevitably rejected, the Supreme Court can decline to hear an appeal (since I thought that was the point of adding the Court of Appeal)

I'm not planning on getting married just yet but pretty disappointing everyone who is can be delayed by two crackpots like these two.

mr.anonymous · 29-06-2015 9:48am

http://m.independent.ie/irish-news/courts/court-rejects-challenges-to-marriage-referendum-31282033.html

Two challenges to the referendum were rejected by the High Court at the start of June.

The Supreme Court can refuse to hear a case if they don't see it as important to the public.

who is this · 29-06-2015 4:09pm

And one appealed it (which isn't being heard by Appeals court until 30th July).

The other I don't know what's going on because there is a case scheduled for Friday in appeals of Lyons v Ireland, but no one has been reporting that he has appealed it too, so I'm wondering if he is appealing the costs order or what...

The reporting on all of this has been very bad. Fitzgerald has time and again clarified pending notices to enter into civil partnership can be taken to be intention to marry yet time-and-again the media say that there will be a 3-month wait once legislation is passed.

Peregrinus · 30-06-2015 3:43am

mr.anonymous wrote: »

http://m.independent.ie/irish-news/courts/court-rejects-challenges-to-marriage-referendum-31282033.html

Two challenges to the referendum were rejected by the High Court at the start of June.

The Supreme Court can refuse to hear a case if they don't see it as important to the public.

They can. But my hunch is that a challenge to a referendum, however unlikely to succeed, is one that they will see as having public importance, since it's important that there be no doubt whatsoever about the validity of the definitive text of the Constitution.

(In other words, even if they are all but certain to dismiss this challenge, it's important that they do dismiss it. "Public importance" doesn't overlap exaclty with "realistic chance of winning".)

who is this · 30-06-2015 7:16am

Peregrinus wrote: »

They can. But my hunch is that a challenge to a referendum, however unlikely to succeed, is one that they will see as having public importance, since it's important that there be no doubt whatsoever about the validity of the definitive text of the Constitution.

(In other words, even if they are all but certain to dismiss this challenge, it's important that they do dismiss it. "Public importance" doesn't overlap exaclty with "realistic chance of winning".)

Though we've never had such an appeal go to the court of appeal first.

It would be a good idea for the referendum acts to require challenges go directly to the supreme Court. They almosy always end up there anyway since these people have more money than sense (and given that they often don't have a lot of money that's LD m saying a lot).

And the State would never ever accept a loss in any court but the supreme Court.

SpaceTime · 01-07-2015 1:58am

This is actually starting to look quite anti democratic.

If there were a successful appeal we would be heading for theocratic banana republic status rather quickly.

We'd also be looking at a fossilised constitution that would be almost impossible to amend.

This could potentially cause a very, very messy precedent if it were successful and it also calls into question all sorts of issues about separation of powers.

Should the courts really be ruling on democratic referenda? Surely if it's signed off by an independent referendum commission that's all we should really need?

Peregrinus · 01-07-2015 2:05am

Well, I don't think you need worry about that until, at least, there is a successful appeal. That's highly unlikely.

But even at worst, the outcome of a successful appeal would not be a permanent ban on gay marriage; it would be a re-run of the referendum.

There's nothing anti-democratic or banana-republicky about this. On the contrary, it's generally asserted that one of the hallmarks of a genuine democracy is the rule of law, meaning that the government, and not just the citizens, is subject to the law and must respect it If an election or an referendum is conducted improperly or illegally, it can be set aside. And citizens have a right of access to the courts to test the propriety, legality and validity of elections and referendums.

It may be a pain at times, but it's not anti-democratic. On the contrary, removing the right to have this tested in court would be anti-democratic.

SpaceTime · 01-07-2015 2:12am

Well, it depends really.

These challenges are invariably political in nature.

The rule of law can also be used to ignore the democratic will of the people in some cases.

We've seen it abused where an election result isn't liked in some authoritarian state and the next thing you know it's declared unconstitutional by a court.

I just think where a court is interfering in a referendum or election result you are stepping into very dangerous areas of separation of powers and rule of democracy.

I'm not saying Ireland's an authoritarian state but, you can see where this could get very, very messy...

I would rather see a technical electoral commission which could address appeals only on matters of protocol and electoral procedure.

Peregrinus · 01-07-2015 4:21am

SpaceTime wrote: »

Well, it depends really.

These challenges are invariably political in nature.

The rule of law can also be used to ignore the democratic will of the people in some cases.

We've seen it abused where an election result isn't liked in some authoritarian state and the next thing you know it's declared unconstitutional by a court.

I just think where a court is interfering in a referendum or election result you are stepping into very dangerous areas of separation of powers and rule of democracy.

I'm not saying Ireland's an authoritarian state but, you can see where this could get very, very messy...

I would rather see a technical electoral commission which could address appeals only on matters of protocol and electoral procedure.

In authoritarian states, elections are more likely to be overruled by the incumbent (or by the army) than "declared unconstitutional by a court".

The point about the separation of powers is that any question about whether a particular action is lawful is a matter for the courts; it's a judicial question. So if you take questions about whether a referendum or election has been conducted in a lawful manner away from the courts and give them to an executive body like an electoral commission, you're not respecting the separation of powers; you're violating it. You're taking a certain set of laws and saying that the courts can no longer rule on whether these laws have been properly applied or not, instead this will be done by an executive body. Basically, the executive will decide whether the executive has observed the law. You can see how that's generally not regarded as an enhancement to democracy.

SpaceTime · 01-07-2015 10:16am

Why would an electoral commission be an executive body any more than the courts?

I'm still not very comfortable that what are basically entirely politically driven cases are being used to effectively attempt to block the outcome of a democratic vote.

I just hope we're not going to end up footing their legal costs.

Annasopra · 01-07-2015 10:36am

SpaceTime wrote: »

This is actually starting to look quite anti democratic.

If there were a successful appeal we would be heading for theocratic banana republic status rather quickly.

We'd also be looking at a fossilised constitution that would be almost impossible to amend.

This could potentially cause a very, very messy precedent if it were successful and it also calls into question all sorts of issues about separation of powers.

Should the courts really be ruling on democratic referenda? Surely if it's signed off by an independent referendum commission that's all we should really need?

A: It would be anti democratic if we didnt allow appeals
B: There really is no need to worry that it will be successful. His appeal is only on the basis that Labour and FG spent money on posters!!!

SpaceTime · 01-07-2015 10:54am

What's to stop another 50 appeals from well funded individuals who think the ballot papers were in the wrong font or there was a funny smell in the voting booth ?

Does this process not have the potential to create unreasonable and disproportionate delays to the outcome of a vote?

It's starting to look more like filibustering than due process.

Merces · 01-07-2015 11:16am

The guy who's doing this is a sad clown.

eviltwin · 01-07-2015 11:24am

Joeytheparrot wrote: »

A: It would be anti democratic if we didnt allow appeals
B: There really is no need to worry that it will be successful. His appeal is only on the basis that Labour and FG spent money on posters!!!

I don't really understand your first point. To me its quite simple, the people voted and the vote should stand. I can understand an appeal if there is a possibility the public were misled during the campaign or something like that but this is quite straight forward. Its frustrating for all those people who are in a limbo all at the behest of one person. Its making a joke of the legal system when people who are just bad losers can use it to hold a referendum to ransom.

Peregrinus · 01-07-2015 11:27am

SpaceTime wrote: »

Why would an electoral commission be an executive body any more than the courts?

Well, the courts aren't an executive body because they're a judicial body. And electoral commissions in other countries are generally executive bodies, as the Referendum Committee here is. So unless by "electoral commission" you mean something that doesn't look like any of the electoral commissions that actually exist around the world, it's going to be an executive body. Basically, if it's business is carrying out elections and refendums according to the law, it's an executive body.

SpaceTime wrote: »

I'm still not very comfortable that what are basically entirely politically driven cases are being used to effectively attempt to block the outcome of a democratic vote.

I'm fine with it. It's routine in constitutional democracies, and often functions as an important protection for minorities.

Do I need to point out that the US Supreme Court has just legalised same-sex marriage, thereby overriding several state-based referendums which banned it in particular states? Are you uncomfortable with that?

SpaceTime · 01-07-2015 11:30am

This is why I think we should have an electoral commission, independent of the executive / government that can act to ensure that there's absolutely no doubts over the validity of polls or the process of elections.

It could have an appeals tribunal that would deal with stuff like this in a far more expedient manner and having a robust system in the first place would prevent any doubts like this being created in the first place.

As it stands there are too many gaps that are allowing for situations where people can bring appeals based on possibly sloppy processes and ad hoc setup of each referendum with a new commission.

The previous case about CCTV cameras being cross referenced to voting times was utterly off the wall stuff.

My concern is you'll just get a heap of appeals all designed to delay the outcome or derail a vote result.

To my eyes, this is just filibustering using the legal system.

SpaceTime · 01-07-2015 11:39am

So, what would be the limit to appeals here ?

Could a well funded organisation continue to lodge appeals until 2017 possibly pushing this into the next Government's term of office for example ?

I'm just very unclear as to when this process is exhausted and the referendum results can be declared valid?

Is there a time limit ? An appeals window ? Or is this just totally open ended ?

Daith · 01-07-2015 11:42am

SpaceTime wrote: »

So, what would be the limit to appeals here ?

Could a well funded organisation continue to lodge appeals until 2017 possibly pushing this into the next Government's term of office for example ?

I'm just very unclear as to when this process is exhausted and the referendum results can be declared valid?

Is there a time limit ? An appeals window ? Or is this just totally open ended ?

I'd like to know this too. Surely you can't have a line of people all waiting to challenge a referendum?

SpaceTime · 01-07-2015 11:44am

Daith wrote: »

I'd like to know this too. Surely you can't have a line of people all waiting to challenge a referendum?

I can't seem to see anything in constitutional or electoral law...maybe someone could point me to it?

I'd have thought maybe a 30 day window or something like that would more than sufficient to iron out any procedural issues ?

Peregrinus · 01-07-2015 11:45am

Why do you think an electoral commission with an appeals tribunal would be more independent of government than the courts are? And would you be any happy with these too lad threatening to delay or derail the implementation of SSM by bringing their claims to the Electoral Commission Appeals Tribunal?

(And then, of course, if they didn't get the result they wanted, they'd head off to the High Court, and then the Court of Appeal, and then Supreme Court, complaining that the Electoral Commission Appeals Tribunal hadn't done it's job properly and demanding a remedy. I don't see that you're gaining anything by this.)

The bottom line is that, in a democracy, the government is not allowed to create agencies that exercise powers without any supervision from or accountability to the courts. Anybody who thinks that a government agency is behaving unlawfully in a way that affects him adversely can go to the courts, have his say and seek a remedy. Te reason why we think that's a fundamental feature of any functioning democracy is pretty obvious.

SpaceTime · 01-07-2015 11:46am

Firstly, I think a proper electoral commission would remove a lot of doubt and make any likelihood of grounds for appeals less likely by just tightening up and properly overseeing the election system.

You'd have up prove the electoral commission wasn't doing its job and you'd have clear, obvious, transparent procedures and records of how everything was done. The current system is far more ad hoc than it should be.

An appeals tribunal should be required to rule on a matter like this on a timely way.

I honestly think holding up the result of a referendum or election is very dangerous. If there's an appeal, it should be dealt with immediately not in 30+ days.

This should be coming before any other court business.

That's why I think you need a dedicated appeals process. Put it into the Supreme Court if you like, but it shouldn't be able to drag out the validity of a poll beyond a very short window.

Well, let's see where this goes ... If it starts rolling towards 2017 we've a major constitutional problem!

Daith · 01-07-2015 11:47am

Peregrinus wrote: »

(And then, of course, if they didn't get the result they wanted, they'd head off to the High Court, and then the Court of Appeal, and then Supreme Court,

This is clearly just going to go to the Supreme Court anyway.

Peregrinus · 01-07-2015 11:57am

SpaceTime wrote: »

So, what would be the limit to appeals here ?

Could a well funded organisation continue to lodge appeals until 2017 possibly pushing this into the next Government's term of office for example ?

I'm just very unclear as to when this process is exhausted and the referendum results can be declared valid?

Is there a time limit ? An appeals window ? Or is this just totally open ended ?

You have, I think, 30 days to challenge the results of an election or referendum. Your challenge is brought in the High Court, which hears it quickly - they have already heard and disposed of this challenge. Then your appeal is to the Court of Appeal, and from there (if they accept it) to the Supreme Court. Those courts, too, can move pretty quickly. If you lose there, you can't go back and raise a new challenge, and so start all over again, because you're out of time. The courts could give you permission to bring a challenge out of time, but you'd need pretty strong evidence of massive voting fraud or something of the kind. (And if you did have that evidence, I think we'd agree that a challenge should be possible.)

SpaceTime · 01-07-2015 12:38pm

Peregrinus wrote: »

You have, I think, 30 days to challenge the results of an election or referendum. Your challenge is brought in the High Court, which hears it quickly - they have already heard and disposed of this challenge. Then your appeal is to the Court of Appeal, and from there (if they accept it) to the Supreme Court. Those courts, too, can move pretty quickly. If you lose there, you can't go back and raise a new challenge, and so start all over again, because you're out of time. The courts could give you permission to bring a challenge out of time, but you'd need pretty strong evidence of massive voting fraud or something of the kind. (And if you did have that evidence, I think we'd agree that a challenge should be possible.)

Could you point me towards the legislation on that?
(Genuinely curious)

Peregrinus · 01-07-2015 12:43pm

Not off-hand, and I am about to disappear into the Australian outback on a two-week camp, so no internet. If I was about to track this down, I'd start by checking the Electoral Acts and the Rules of the Superior Courts, and try googling the phrase "election petition". That will throw up stuff on the procedures for challenging elections, which gets discussed a lot more than challenging referendums, but I suspect the procedures for challenging referendums will turn out, when we track them down, to be modelled on them.

SpaceTime · 01-07-2015 12:45pm

Seems from the Franchise Section of the Dept of Environment, Heritage and Loval Govt:

Declaring result

When all seats have been filled and any recounts are concluded, the returning officer
formally declares who has been elected. Once this is done, the only way a person can question the election result is by presenting an election petition to the High Court within 28 days of the result being declared.

Assume same applies to a referendum.

The result was declared on 23 May so that would mean Saturday, 20 June 2015 was the deadline to appeal.

Since the The Court of Appeal, established on 28th October 2014, occupies an appellate jurisdictional tier between the High Court and the Supreme Court does that mean that there is an option of a further appeal to the Supreme Court after this?!

I see:

Court directly to the Supreme Court if the Supreme Court is satisfied that:
(i) the High Court decision involves a matter of general public importance, and/or
(ii) the interest of justice requires that the appeal be heard by the Supreme Court.

Annasopra · 01-07-2015 1:23pm

eviltwin wrote: »

I don't really understand your first point. To me its quite simple, the people voted and the vote should stand. I can understand an appeal if there is a possibility the public were misled during the campaign or something like that but this is quite straight forward. Its frustrating for all those people who are in a limbo all at the behest of one person. Its making a joke of the legal system when people who are just bad losers can use it to hold a referendum to ransom.

My first point is that of course we should allow appeals in a democratic system. Its healthy for democracy to allow appeals.

Daith · 01-07-2015 1:29pm

SpaceTime wrote: »

Since the The Court of Appeal, established on 28th October 2014, occupies an appellate jurisdictional tier between the High Court and the Supreme Court does that mean that there is an option of a further appeal to the Supreme Court after this?!

Yes it's going to go to the Supreme Court. There's no point doing it otherwise.

NuMarvel · 01-07-2015 1:30pm

Part 4 (Sections 42 to 58) of the 1994 Referendum Act details the circumstances around challenging a referendum result. In summary:

1) A provisional result is published in Iris Oifigiúil (the official Gazette) by the referendum returning officer,
2) A person has 7 days after publication to petition (i.e. apply) to the High court for leave (in other words, permission) to challenge the result,
3) An application for leave can only be considered if certain criteria in the Act are met (e.g. the High court must be satisfied that the matter raised by the petitioner would materially affect the result of the referendum).

In this case, the applications for leave by Walshe and Lyons were made just within the 7 day timeframe. They were also the only ones made, so no other applications for leave can be heard.

Annasopra · 01-07-2015 1:44pm

SpaceTime wrote: »

So, what would be the limit to appeals here ?

Could a well funded organisation continue to lodge appeals until 2017 possibly pushing this into the next Government's term of office for example ?

I'm just very unclear as to when this process is exhausted and the referendum results can be declared valid?

Is there a time limit ? An appeals window ? Or is this just totally open ended ?

No

The referendum Act 1994 only gives 7 days to lodge an appeal

(2) A referendum petition in relation to a provisional referendum certificate shall not be presented to the High Court unless that court, on application made to it in that behalf by or on behalf of the person proposing to present it not later than seven days after the publication in Iris Oifigiúil of the certificate, by order grants leave to the person to do so.

SpaceTime · 01-07-2015 1:45pm

Joeytheparrot wrote: »

No

The referendum Act 1994 only gives 7 days to lodge an appeal

When was this appeal lodged?
I thought the original appeals had been rejected by the High Court?

I'm assuming this is an appeal to the High Court's Decision?

If the Court of Appeal rejects this can it then go onto a Supreme Court appeal directly?

If so this could drag on for months!

Amendment court challenge

Comments