High court challenge on the referendum

ohnonotgmail

Yesterday a challenge was launched in the high court that seeks to allow residents of northern ireland to vote in the upcoming referendum. A couple of questions if i may.

1. Surely this is bound to fail? Non-residents cannot vote in Dail elections which subsequently bars them from voting in referendums. And this is assuming they are irish citizens.

2. What are the likely costs of such a judicial review for those bringing the case? Is there a possibility that the costs might be lumped on the government?

3. Will the solicitor who has asked for the judicial review be obliged to tell the court who his clients are?

Robbo

Relevant Irish Times article.

1. Probably. The Constitution applies the same voting criteria to a referendum as it does to a Dail election.
2. Tens of thousands. If the applicant is a man of straw, there'll be no chance of recovering costs even if the State seeks them.
3. It's a student named Roisin Morelli.

ohnonotgmail

Robbo wrote: »

Relevant Irish Times article.

1. Probably. The Constitution applies the same voting criteria to a referendum as it does to a Dail election.
2. Tens of thousands. If the applicant is a man of straw, there'll be no chance of recovering costs even if the State seeks them.
3. It's a student named Roisin Morelli.

What i meant by question 2 was is it possible for her to claim that the case was of national importance and that the state should pay her legal costs even if she loses?

Robbo

ohnonotgmail wrote: »

What i meant by question 2 was is it possible for her to claim that the case was of national importance and that the state should pay her legal costs even if she loses?

Yes, that gets claimed a lot on the referendum cases.

Caranica

ohnonotgmail wrote: »

What i meant by question 2 was is it possible for her to claim that the case was of national importance and that the state should pay her legal costs even if she loses?

To which nation?

ohnonotgmail

Caranica wrote: »

To which nation?

the one she is bringing the case against. there is no other nation that is a party to this.

johnnyskeleton

Article 16.1.2 says:

i All citizens, and
ii such other persons in the State as may be
determined by law,
without distinction of sex who have reached the
age of eighteen years who are not disqualified by
law and comply with the provisions of the law
relating to the election of members of Dáil
Éireann, shall have the right to vote at an election
for members of Dáil Éireann.emphasis mine

Article 16.1.3 says:

No law shall be enacted placing any citizen
under disability or incapacity for membership of
Dáil Éireann on the ground of sex or
disqualifying any citizen or other person from
voting at an election for members of Dáil Éireann
on that ground.

So Irish citizens in Northern Ireland do have the constitutional right to vote in elections for Dail Eireann (and thus, in turn, in any referendum to change the constitution).

However, they have to comply with the law relating to those elections. Part of that electoral law is that you are ordinarily resident in a Dail Eireann constituency:

http://www.irishstatutebook.ie/eli/1992/act/23/section/8/enacted/en/html#sec8

Basically, the State restricts voting to ordinary residents. It extends its citizenship laws to the whole Island (art 2) but acknowledges, after Good Friday Agreement, that the State only has operational control over the 26 counties (art 3). It is consistent with that to only allow ordinary residents to vote.

That is not to say that there isn't a compelling moral argument to allow non resident citizens to exercise a right to vote, whether that be NI or everywhere in the world, but the Constitution is reasonably clear that such is to be regulated by law.

Jamie2k9

http://www.thejournal.ie/eighth-northern-ireland-3904192-Mar2018/

Carawaystick

Wouldn't the state try to say the plaintiff should have tried this around the time of the first amendment, or long before now anyway and it's out of time?

Fred Swanson

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Carawaystick

Fred Swanson wrote: »

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Whats the rule for JR? time from when you became aware of issue while being an adult, on the clock starts on yer 18th birthday?

Peregrinus

Carawaystick wrote: »

Wouldn't the state try to say the plaintiff should have tried this around the time of the first amendment, or long before now anyway and it's out of time?

The first referendum to amend the Constitution was held in 1959. Most voters now alive were either not born, or not of voting age, then.

Either way, it doesn't matter. If I'm wrongly excluded from an election or referendum today, I have a cause of action which arises today. The fact that I was wrongly excluded from previous elections or referenda and cannot now object to that to does not mean that I cannot object to my present exclusion.

Nermal

Robbo wrote: »

2. Tens of thousands. If the applicant is a man of straw, there'll be no chance of recovering costs even if the State seeks them.

Should be forced to lodge costs in advance in that case. Make sure there is skin in the game.

Fann Linn

Nermal wrote: »

Should be forced to lodge costs in advance in that case. Make sure there is skin in the game.

That just implies that Justice/Law is for the wealthy.

Fred Swanson

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hullaballoo

Similarly, there are applications that can be brought by impecunious litigants to enable them to bring actions that are of public importance.

Peregrinus

Fred Swanson wrote: »

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But the state is not likely to seek, or get, such an order in a case of this nature. The action raises a point of law of exceptional public importance, and it wouldn't be a good look to attempt to stop the action being heard on the grounds that it might cost money.

Robbo

Struck out with no order as to costs.

Fred Swanson

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lifeandtimes

Fred Swanson wrote: »

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Who would it be appealed too?

Fred Swanson

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lifeandtimes

Fred Swanson wrote: »

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I suppose if theres an avenue to appeal then why would the constitutional right to appeal; not be an option?

Possible time delays maybe unless the judge granted a stay in event of appeal but with something as big as this i doubt they would

Fred Swanson

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Jamie2k9

Fred Swanson wrote: »

Court of Appeal or Supreme Court.

Not sure but from reading reports I think they cannot bring it further.

Jamie2k9

Jamie2k9 wrote: »

Not sure but from reading reports I think they cannot bring it further.

You can appeal the refusal of leave for judicial review to the Court of Appeal.

At a stretch the Supreme Court might take it given the public importance element of the case.

L1011

Fred Swanson wrote: »

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If there was any other referendum between her becoming 18 and now that should surely have been the one to challenge?

Without digging beyond direct media reports I can't find her age and see no justification for digging in to linkedin etc but if she's 22 or older...

Losty Dublin

Robbo wrote: »

Struck out with no order as to costs.

It wouldn't be a referendum without at least one straw clutching high court test to speak about.

Peregrinus

L1011 wrote: »

If there was any other referendum between her becoming 18 and now that should surely have been the one to challenge?

It would be one that she could have challenged.

But the fact that she didn't raise a challenge in connection with that referendum would not be a bar to raising it in connection with this one. If the state has systematically been behaving unlawfully in some regard, the behaviour continues to be unlawful, and can be challenged whenever it is repeated.

Hotblack Desiato

Quite obvious what was going on here, it never stood a chance but the aim was to prevent the democratic vote from going ahead as scheduled.

Quite obvious who was funding it and why. Expect many more ridiculous cases post-repeal.

Fred Swanson

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Franz Von Peppercorn

Fred Swanson wrote: »

Surely the state should be jumping on all this as litigation funding is clearly going on?

Is litigation funding illegal?

Wouldn’t matter much as she is living, paradoxically, in the UK.

hullaballoo

Franz Von Peppercorn wrote: »

Is litigation funding illegal?

Wouldn’t matter much as she is living, paradoxically, in the UK.

Yeah, litigation funding is illegal under our laws against maintenance and champerty.

And she took her case here. In the free State. As it were.

donegal_man

Fred Swanson wrote: »

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Champerty is unlawful in Ireland. Confirmed by the Supreme Court in Persona Digital Telephony Limited and Another v The Minister for Public Enterprise, Ireland and Others in May of last year.

Robbo

The judgment has been published in the Morelli case and the related Fisher case, both following almost identical paths in terms of authorities.