Wednesday, 30 September 2015
Referendum and Courts (Amendment) Bill 2015: First Stage
That leave be granted to introduce a Bill entitled an Act to provide for the timely hearing of Referendum Petitions; to provide that appeals from decisions of the High Court in relation to such proceedings be referred directly to the Supreme Court; to provide for an automatic stay on any High Court order appealed to the Supreme Court; to provide that the Court of Appeal has no function in such proceedings and to provide for connected matters.
The Referendum and Courts (Amendment) Bill 2015 seeks to ensure that the implementation of constitutional change agreed by a majority voting in a referendum is not unnecessarily delayed. It is now a regular occurrence that the outcome of referendums is challenged in the courts.Our current legislation prescribes no specific time-frames within which such challenges should be heard and determined. The Bill published today seeks to ensure that court challenges to the outcome of a referendum are fast-tracked through the court system whilst also ensuring that in the interests of justice, adequate time is provided to hear and determine any such challenges.
A challenge to a referendum result under our current law is a two-stage process. First, a preliminary application is made to the High Court for leave to issue a petition challenging the result of a referendum and second, if leave is granted, the petition is then issued and, ultimately, a full trial or court hearing takes place. Until the enactment of the Court of Appeal Act 2014, any appeal taken against a decision of the High Court in respect of the preliminary application for leave to petition fell to be heard by the Supreme Court. By way of example, on 10 November 2012, a majority voted in favour of the children's rights amendment and that outcome was challenged. It was not until almost two and a half years later, on 28 April 2015, that the children's rights amendment was finally incorporated into our Constitution, the Supreme Court having dismissed the referendum challenge four days earlier.
More recently, after the marriage equality referendum, the High Court declined leave to petition to two persons challenging the validity of that referendum's outcome. Each appealed, first to the Court of Appeal and then to the Supreme Court. While the applications were ultimately dismissed by the Supreme Court, they highlighted that a court challenge to the outcome of a referendum could result in court hearings in the High Court, the Court of Appeal and the Supreme Court. This would substantially extend the length of time taken for the courts to finally determine such challenges.
It is in the public interest that there is a proper and proportionate balance between the rights of the people who vote at a referendum and the rights of an individual or individuals to challenge a referendum's outcome. It is also in the public interest that our courts facilitate applications taken to ensure the proper compliance with our laws in the holding of a referendum while also ensuring that the referendum outcome is not left in a legal limbo for an extended period of time. This is the objective of this Bill.
The Bill prescribes that all future appeals from decisions of the High Court in referendum matters go straight to the Supreme Court and that the Court of Appeal play no role in such court proceedings. Where an application is made for leave to petition, it prescribes a three-day time frame within which an appeal can be filed in the Supreme Court against a decision of the High Court and that such appeal must be heard and determined within two weeks. Where leave to petition is granted, it prescribes that the High Court trial or hearing must take place within six weeks and that judgement must be delivered no later than two weeks later. A seven-day period is prescribed for the lodging of an appeal to the Supreme Court and such appeal must be heard within the following six weeks and judgement delivered no later than three weeks thereafter.
The Bill also addresses an additional difficulty highlighted by the Supreme Court in the recent proceedings relating to the marriage equality referendum. The Supreme Court noted that despite the appeals pending before it, as no stay had been granted on the order of the Court of Appeal, the referendum certificate had already been signed and the marriage equality amendment had already been incorporated into the Constitution. Had the Supreme Court disagreed with the decisions of both the High Court and the Court of Appeal and granted the applications to petition the High Court challenging the outcome of that referendum, an unprecedented constitutional difficulty could have arisen. To resolve this difficulty, the Bill prescribes that a stay will automatically apply to any order made by the High Court for the days during which an appeal can be lodged with the Supreme Court or, where such appeal is lodged, until it is determined by the Supreme Court.
The Bill proposes important changes to the Referendum Act 1994 and our Courts Acts. The time-frames prescribed by it are not set in stone. It is my hope that the principle of the Bill will be accepted by both the Government and Opposition Deputies and that a constructive public debate can now take place on what is proposed.
The decision of the people in a referendum is an important democratic act of political sovereignty. It is not tenable that, following the holding of a referendum in this State, for an extended period of time it can be uncertain as to whether or not a constitutional change favoured by a majority may become part of our fundamental laws, that court challenges to such outcomes can take two to three years and that individual citizens are denied the assistance or benefits that might affect their lives by agreed constitutional change coming into effect. Moreover, should the courts determine that, as a result of an illegality, a mistake or other irregularity, the result of a referendum as a whole has been materially affected and that, as a consequence, the referendum result should be annulled and a new referendum held, it is in the public interest that the conduct of any such new referendum is not unduly delayed.
If this Bill was enacted, we would avoid all of the difficulties that have been experienced to date in this area, including such unnecessary delays occurring.