Unconstitutional expenditures – V – An update on remedies for breach of the McKenna prohibition

choosing between yes and noIn four previous posts, I looked at the Supreme Court’s 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 particular, in the fourth, I considered the range of remedies which might be available for breach of that prohibition. I noted in that post that Part IV of the Referendum Act, 1994 (also here) provides for Referendum Petitions to challenge the conduct of a referendum. It comes as no surprise to learn that this procedure has now been invoked against the outcome of the referendum held on 10 November 2012 (Irish Examiner | Irish Independent | Irish Times | RTÉ | TheJournal.ie here and here | TV3). I expect the application to fail, but it has many interesting features which give it a fighting chance.

According to section 40 of the Act (also here), the referendum returning officer must aggregate the returns from all of the local returning officers, prepare and sign a provisional referendum certificate recording the votes and outcome in the referendum, and publish a copy of that provisional certificate in Iris Oifigiúil (the twice-weekly official Irish State gazette). This certificate was duly published in Iris Oifigiúil for Tuesday 13 November 2012, at pp1657-1659 (pdf).

According to section 42 of the Act (also here), the papers to commence a petition to challenge the provisional referendum certificate must be lodged with the High Court “not later than seven days after the publication in Iris Oifigiúil of the certificate”. This means that the papers for a petition in respect of the certificate gazetted on 13 November must be lodged on or before 20 November – today. Just ahead of this tight deadline, two intending petitioners made the necessary application yesterday. Mr Justice Iarfhlaith O’Neill directed that the State be placed on notice of the application, and he returned the matter to next Tuesday. Meantime, those behind the challenge are gathering their forces, and preparing their arguments.

The procedure under section 42 is that the intending petitioners make an application for leave to present the petition, and the court is directed not to grant such leave unless it is satisfied that there is prima facie evidence of a breach of section 43 (also here) which is such as to affect materially the result of the referendum as a whole. Of the various grounds for a referendum petition set out in section 43, the most relevant is that the intending petitioners must demonstrate an obstruction of or interference with or other hindrance to the conduct of the referendum.

At yesterday’s hearing, O’Neill J agreed that the intending petitioners will need to have the text of the full Supreme Court judgment in McCrystal, to be delivered on 11 December next, before their application for leave to bring the petition may be heard.

In Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996), which is the only section 42 challenge to the outcome of a referendum where there had been a breach of the McKenna prohibition, the petition failed on the facts: the petitioners failed to adduce sufficient evidence that there was a hindrance to the conduct of the referendum which materially affected the result of the referendum as a whole. In my fourth post on the issue, I suggested that the facts here are even less congenial to a challenge than they were in Hanafin. Recognising this, the petitioners have made two ingenious moves. First, they have identified the perfect petitioner: a citizen who voted by post before the Supreme Court announced its per curiam in McCrystal, who avers that she voted in favour of the referendum on foot of the government’s information, and who avers that she lost the opportunity to change her mind and vote the other way after McCrystalupdate: this petitioner has subsequently withdrawn from the case. Second, they argue that confining the petition to the grounds of challenge and burden and standards of proof set out in the Act is unconstitutional, so they are also seeking leave to challenge the constitutionality of the relevant aspects of Part IV of the Act; and they contend in particular that the burden of proof should be on the government to show that the breach of the McKenna prohibition did not have a material effect on the outcome of the referendum. In my fourth post on McCrystal, I pointed out various features of the petition procedure which make it an awkward mechanism to challenge the outcome of a referendum as a whole on the grounds that the McKenna prohibition had been breached, and I speculated that constitutional principles might be invoked to facilitate a more direct challenge. It was not a difficult speculation, and I am entirely unsurprised that the intending petitioners are seeking to make such arguments. As I said then, if constitutional principles can be successfully invoked, then all bets are off in relation to matters such as standards of proof, and available remedies.

Having said all of that, I do not think that the challenge to the burden of proof (at least as it is described in the press reports linked above) is likely to be successful. The basic position is that those who take a case must prove every element of their case. As Finnegan J put it in Rogers v MIBI [2009] IESC 30 (31 March 2009) the “legal burden of proof in all civil cases lies upon the person who asserts the affirmative on each issue in the case” and that “there is no burden on the defendant to prove a negative”. In principle, therefore, the intending petitioners will bear the onus or burden of proving that the partisan advertising adversely affected the outcome of the referendum. Hence, while there was some discussion of the appropriate standard of proof in Hanafin, it was assumed on all sides that the petitioners bore the burden of proving their case to the appropriate standard, and it was held that they did not discharge that burden. On the other hand, the courts do accept that there are practical limits on the proposition that those who allege must prove. To take only one recent discussion, in Connaughton v Minister for Justice [2012] IEHC 203 (30 March 2012)

29. The onus of proof in civil cases rests ordinarily on the person who alleges a matter. In negligence actions, this means that the burden of proving the negligence is on the plaintiff. However, this burden is not unlimited. …

35. A plaintiff in a negligence case bears the onus of proving causation on the balance of probabilities. However, the plaintiff does not have to rule out through their evidence every possible factual scenario whereby the damage was caused other than by negligence on the part of the defendant. The plaintiff merely has to adduce evidence that gives rise to a reasonable inference that the damage was caused by the defendant’s negligence. However, the burden of proof can shift to the defendant where a particular fact is peculiarly within the defendant’s knowledge or capacity of proof, under he doctrine of res ipsa loquitur. …

If the intending petitioners do not think that they can establish that the partisan advertising adversely affected the outcome of the referendum, they can seek to cast the burden of proof on the government, but there mere fact of difficulty in proving a case is not a sufficient reason to shift the burden on to the other party. Their argument would seem to be that an entity which has committed a wrongful act must show that the wrongful act did not have a material effect. But this is exactly the contrary of the normal legal position. It is not enough that a plaintiff demonstrate that a defendant has committed a wrongful act such as a tort (civil wrong), the plaintiff must also show that the tort caused an injury. To get around this, the intending petitioners will have show that things are different if the wrong in question is not a civil wrong but a constitutional wrong. In particular, in the case of a constitutional wrong, they will have to show that constitutional principles require a standard other than the normal legal position. This is a very high hurdle, and it will be interesting to see how they go about clearing it.

To my mind, this argument, to be successful, depends for its strength on two matters: first, that there is indeed a “constitutional wrong”; and second, that if the referendum is allowed to stand, that “constitutional wrong” will go without a remedy. I think neither element of the argument holds water. First, the Court in Hanafin used the phrase “constitutional wrong” as a shorthand for a breach of the McKenna prohibition, and is not clear that they intended anything more by the phrase than that. So the first thing that the intending petitioners must do is persuade the courts that the phrase “constitutional wrong” carries a great deal of judgmental freight. Second, even if they succeed in that, it is plainly not the case that this “constitutional wrong” would go without a remedy if the referendum is allowed to stand. There already has been one judicial remedy for that “constitutional wrong”: the Supreme Court in McCrystal granted a declaration that the partisan spending was unconstitutional. Moreover, if more is necessary, as I explore in my fourth post, there are several other possible remedies against various parties, not just the state, any one of which could be an adequate supplement to the McCrystal declaration.

Even if the intending petitioners establish these two arguments, they are not home and dry. The tactic of re-imagining a claim in a different legal category from the obvious one, and then arguing that the different category does not suffer from the constraints of the obvious one, is a common enough approach – and it commonly fails. For example, courts are increasingly encountering obvious common law tort and contract claims being re-imagined as claims for equitable compensation for breach of fiduciary duty. In these cases, by and large, newly-minted equitable principles – concerning such matters as causation, remoteness, burden and standard of proof, remedial strategies, and so on – largely reflect those applicable to the related but evaded common law claims (see, eg, Canson Enterprises v Boughton [1991] 3 SCR 534, 1991 CanLII 52 (SCC) (21 November 1991); Target Holdings v Redfern [1996] 1 AC 421, [1995] UKHL 10 (20 July 1995); Pilmer v Duke Group Ltd (in Liq) (2001) 207 CLR 165, [2001] HCA 31 (31 May 2001)).

Right now, I can’t see a compelling constitutional principle which will mandate a reversal of the normal legal position relating to the burden of proof, so I don’t think that they are likely to be successful. But this is not a frivolous case, and the intending petitioners will make a serious argument, so we shall have to have to wait and see whether the courts vote yes or no to the petition.