Unconstitutional expenditures – IV – remedies for breach of the McKenna prohibition

Polling sign - element of photo by European ParliamentThis is my fourth and final post on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In my first post, I looked at the background to the per curiam. In my second post, I explored exactly what was forbidden by McKenna, and concluded that it prohibits intentional partisan government expenditure. In my third post, I concluded that the precise constitutional basis for that prohibition is that such expenditure is undemocratic, unfair, unbalanced, unequal or partial, and that it may be restrained because it therefore violates the right to an equal franchise (see also the posts here by Paul McMahon and here by Laura Cahalane, and this assessment by Conor O’Mahony). In this post, I want to look at the remedies which might be available to a citizen for breach of that right.

In McCrystal, the Court granted a declaration that the respondents had acted wrongfully in spending public money on a partisan website, booklet and advertising campaign in relation to the referendum. That declaration is itself a remedy, and the Court was unwilling to go beyond it and grant an injunction against the material. In the words of the per curiam, the Court did “not consider it either appropriate or necessary to grant an injunction”. The Court’s traditionally strong understanding of the doctrine of separation of powers is such that they are often unwilling to do more than to grant a declaration against the executive (see, eg, TD v Minister for Education [2001] 4 IR 259, [2001] IESC 101 (17 December 2001)). This is often sufficient. For Barrington J in Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996), it was important to emphasise that, once the Supreme Court in McKenna had declared the unconstitutional impropriety, that provided the remedy: the “Government immediately acknowledged itself in the wrong and wound down its advertising campaign”. O’Flaherty J made a similar observation. And Denham J also took pains to point out that the Supreme Court had provided a remedy in McKenna.

There is, however, more than a hint in the McCrystal per curiam that if the government had not taken down the website and ceased distributing and publishing the material, then it might have become appropriate and necessary to grant an injunction. Of course, the government took the hint. But it does mean that, whilst the primary remedy for a breach of the McKenna prohibition would seem to be a declaration that the partisan expenditure is unconstitutional, an injunction to restrain that expenditure could be available where appropriate and necessary.

The per curiam does not say whether or not the applicant sought an injunction to restrain the holding of the referendum, analogous to the injunction awarded in Crotty v An Taoiseach [1987] IR 713, [1987] IESC 4 (9 April 1987) (though cf Pringle v Government of Ireland [2012] IESC 47 (19 October 2012)). Applications for injunctions to restrain referenda have always failed (Roche v Ireland [1983] IEHC 90 (17 June 1983); Finn v Attorney General [1983] IR 154; Slattery v An Taoiseach [1993] 1 IR 286; Riordan v An Taoiseach (No 2) [1998] IEHC 77 (20 May 1998) aff’d [1998] IESC 45 (19 November 1998); Morris v Minister for the Environment [2002] 1 IR 326, [2002] IEHC 5 (1 February 2002)) on substantive grounds. On the other hand, the Supreme Court held that, in McCrystal – unlike any of those other cases – there was indeed a substantive infringement. In any event, this is uncharted territory in post-McKenna case law, so if this was sought in McCrystal, I hope that the 11 December judgments explain why it was declined.

In the High Court in McCrystal, Kearns P tabulated the Department’s expenditure of €1.1m on the website, booklet and advertising. Since the unconstitutionality relates to the expenditure, it may be that there is a remedy relating to the expenditure – or at least some of it: in Hanafin, O’Flaherty J was at pains to exclude opinion polling from the ambit of McKenna; and other items on the table might also not be constitutionally infirm. But, for those expenditures that are within the McKenna prohibition, there may be a remedy. For example, in Murphy v AG [1982] IR 241 (rtf) 313 Henchy J held that, in the case of an unconstitutional statute

the condemned provision will normally provide no legal justification for any acts done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.

There is no material distinction between an unconstitutional exercise of legislative power (in the purported enactment of an unconstitutional statute) and an unconstitutional exercise of executive power (in intentional partisan government expenditure) – they are both unconstitutional, the same consequences flow. Hence, prima facie, there is no legal justification for transactions undertaken in pursuance of the intentional partisan government expenditure. Of course, Henchy J acknowledged in Murphy that “considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that force and effect be given in certain cases to transactions carried out under the void statute” (322; see also Griffin J at 328) and the Supreme Court in A v The Governor of Arbour Hill Prison [2006] 4 IR 88, [2006] 2 ILRM 481, [2006] IESC 45 (10 July 2006) has given full effect to this latter principle. If the expenditure transactions are void, then in the ordinary course, the payor on such a void contract is entitled to restitution of the payments – on the grounds of mistaken belief in the validity of the contract, of failure of consideration, or of a policy against unconstitutional expenditure. Moreover, whilst the defence of change of position recognised by Henchy J in Murphy (319-320) might apply to the first two grounds of recovery, it is unclear whether it can be available in the context of the third.

So much for remedies against the spenders (the declaration of unconstitutionality) and the spending (possible claims to recover it). What about a remedy against the outcome of the referendum affected by the partisan government expenditure? Is the outcome of the referendum invalid, and thus liable to be set aside? Part IV of the Referendum Act, 1994 (also here) provides for Referendum Petitions to challenge the conduct of a referendum. In Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996), the Supreme Court rejected a challenge to the outcome of the divorce referendum after McKenna on the grounds that the conduct of the referendum was not (in the language of section 43 of the Act, also here) “affected materially” by the partisan expenditure. Given that last weekend’s referendum was carried by a margin of 16% or 169,868 votes, it would be necessary to demonstrate that at least 84,935 of those who voted in favour did so because of the partisan expenditure. In Hanafin, the margin was only .56% or 9,114 votes, but the High Court held that the statistical evidence adduced on the applicant’s behalf was “speculative and unsatisfactory”, and (as Keane J so delicately put it) the Supreme Court “declined to interfere with that finding, being satisfied that it was supported by credible evidence” (Coughlan v Broadcasting Complaints Commission [2000] IESC 44 (26 January 2000) [166] (Keane J) describing the outcome in Hanafin). If there was insufficient evidence that the advertising had an ascertainable or measurable influence on the electorate in Hanafin, where the margin was so small, it is hard to see how there could be sufficient evidence where the margin is more than 28 times larger in percentage terms and 18 times larger in vote terms. Even if this hurdle is overcome, the Act does not seem to contain a power simply to strike down the result. Instead, section 47 (also here) provides for a recount, and section 48 (also here) provides for re-taking the referendum in a constituency. Let us assume that the Court is considering 43 orders for re-taking the referendum, one for each constituency. Section 48(2) provides an additional hurdle. Even if section 43 is satisfied, such that a remedy under the Act is appropriate, the remedy of re-taking the referendum may not be available. Section 48(2)

The court shall not order a referendum to be taken again in any constituency merely on account of a non-compliance with any of the provisions contained in this Act or an error in the use of forms provided for in this Act where it appears to the court that the referendum was conducted in the constituency in accordance with the general principles laid down in this Act and that the non-compliance or error did not affect the result of the referendum as a whole.

There was much painstaking parsing of section 43 in Hanafin. Any case that overcomes the hurdles set by that section as interpreted in Hanafin would then have to parse section 48(2) just as meticulously.

Of course, an attempt to bypass the Act cannot be ruled out. For example, it may be that a petition arising from unconstitutional expenditure need not proceed under the Act; or even if must, it may be that the Act simply provides the procedure, and the substance need not be confined to the grounds and remedies provided by the Act. Consider this: if there were no petition mechanism in the Act, the Courts would not deny a citizen the opportunity of challenging by way of judicial review or plenary summons. As Denham J put it in Hanafin “the protection of constitutional rights through the Courts is not dependent on the provision of legislative machinery”. If so, then the Courts will have to weigh whether the Act is an appropriate means of vindicating the constitutional rights infringed by the partisan expenditure. The Court in Hanafin pretty quickly accepted that the Act was sufficient, but I think there is much more to be said on the matter. The basic question is whether, even if Part IV provides the procedural mechanism, it can properly define or confine the substance of the constitutional action. The double construction rule in Walsh J’s judgment East Donegal Co-Operative Livestock Mart Limited v Attorney General [1970] IR 317 can go a long way to making the Act an appropriate vehicle for this kind of constitutional challenge (as the judgments of Hamilton CJ and Blayney J on this point in Hanafin demonstrate), but there are limits to the constructions that can be put on legislative text, and if the need to vindicate constitutional rights falls outside the ambit of the Act, the Courts might hold that a challenge to a referendum arising from unconstitutional expenditure is not confined by Part IV of the Act. If so, then all bets are off in relation to matters such as standards of proof, and available remedies.

Finally, it is important to recall that the prohibition in McKenna is upon intentional partisan government expenditure. It is easy to lose sight of the requirement of intention. In Hanafin, Hamilton CJ identified the “constitutional impropriety” as laying, “not in the fact that the Government campaigned for such a vote but that they expended public funds in so doing”. This is not quite there, in that the requirement of intention is absent. But he does emphasise the point at later stage in his judgment:

Their action in so doing was deliberate and conscious in the sense that they knew exactly what they were doing; their campaign was designed to influence the electorate to vote in favour of the proposal to amend the Constitution and the said campaign was wrongfully financed by the use of public funds and that their actions in this regard were unconstitutional.

The absence of a requirement of intention renders the operation of the McKenna prohibition very difficult, in that it is hard to exclude inadvertence, or the ordinary course of government activity. Moreover, if they are included, it makes it very difficult indeed to craft appropriate remedies. On the other hand, it is acknowledged on all hands that the government has what Barrington J in Hanafin characterised as “the right and duty to lead the people”:

Politicians who think that the Constitution should be amended have the right and duty to attempt to persuade their fellow citizens to adopt the proposed amendment. It appears to me that they are entitled to do this individually, as private citizens, or collectively as members of a political party or of the Government.

They cross the line from this “government by discussion” into unconstitutional territory if they go further and undertake intentional partisan government expenditure in support of this discussion. It is true that in Hanafin, O’Flaherty J did not think that anything could be gained by assigning a description of “deliberate and conscious violation” of the Constitution, as opposed to innocent wrong-doing, to the Government’s action. Howver, that flies in the face of the judgments in McKenna, which do in fact apply the well-established constitutional standard. Of course, there are exceptions and alternative standards, but – apart from this one line from O’Flaherty in Hanafin – there is no hint that an exception is to be carved out, or if another standard is to be applied, in this context of unconstitutional expenditure. As I said in an earlier post, I hope that the Supreme Court in the forthcoming McCrystal judgments will clarify this point. If they do not, it will make it well nigh impossible not only to draw the line between unconstitutional expenditure and legitimate governmental action but also to craft appropriate remedies for the former.

In Hanafin, O’Flaherty J recognised that the Court is “bound to preserve a proportion between the wrong committed, its possible affect and the remedy proposed to right the wrong”. The Court must choose the most appropriate remedy from the wide selection available. It will be interesting to see what, if anything, the judgments in McCrystal have to say about the remedy they awarded (the declaration) as opposed to other possible remedies (including, in particular, the possibility of an injunction to restrain the holding of the referendum). It will be even more interesting to see if other petitioners emerge to challenge the outcome of the referendum. If they do, I think it very likely that the petition would fail. But who knows? They might find 84,935 voters to swear affidavits that they voted in favour because of the partisan expenditure. Then the game would indeed be afoot!