Supporting Documents:

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application by Maurice J. Lyons, the applicant, referred to as “the applicant”, who seeks leave to appeal to this Court from a judgment of the Court of Appeal delivered on the 30th July, 2015, and from the order which was perfected on the 31st July, 2015. The Court of Appeal dismissed his appeal from the refusal of the High Court to grant leave to present a referendum petition.

2. This Court is given jurisdiction to consider such an application by Article 34.5.3º of the Constitution.

3. Article 34.5.3° provides as follows:-

“The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the Court of Appeal, if the Supreme Court is satisfied that:

(i) the decision involves a matter of general public importance, or

(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

5. The applicant seeks leave to appeal the entire decision of the Court of Appeal.

6. The applicant advanced the following reasons as to why this Court should grant leave to appeal:

“(i) Bunreacht na hÉireann – the Constitution of Ireland, 1937 acknowledges that the People in Ireland are sovereign and that the Constitution belongs to them. The three organs of the State – the judiciary, the legislature and the executive/Government – are their servants.

(ii) The Oireachtas has enacted legislation in the form of the Referendum Act 1994 which is being interpreted in a way that does not properly respect the position of the sovereign people who placed their names on the Presidential Register of Electors as rights holders over the Constitution. Such people in effect enroll themselves into the body or institution that has the right to decide on the nature and content of the Constitution. The applicable law for such an institution is that for any decision to be promulgated by them there must be evidence that it represents the collective will of its members and this is demonstrated where a majority of them give their consent to a proposal put to them by one or more of the members.

(iii) The Constitution calls upon the President of Ireland and the Supreme Court to maintain and protect the position of the people of Ireland as sovereign and to quash and nullify any attempts by any of the three organs of the State to usurp that sovereignty. Any matter where the sovereignty of the people is being usurped is clearly one that requires the protection of the Supreme Court and the President of Ireland.

(iv) Article 47.1 of the Constitution, “Referendum” acknowledges the right of certain members of the sovereign Irish People – citizens who have placed their name on the Presidential Register of Electors – to have a proposal for an amendment of the Constitution, by and from them, referred back so they can formally give consent, if they so wish, by placing their mark on the ballot paper provided.

(v) Every such member has the right to consent to or to ignore such a proposal. Each member who deems such a proposal not worthy of their consideration is entitled to ignore it and this position must be respected and counted. The State is not at liberty to discount, to dispense with or ignore their position.

(vi) Article 47.1 acknowledges that where a majority, i.e. the number of such members who give consent outweighs the remainder of the People on the register who did not give their consent, that a proposal to amend the Constitution can be passed.

(vii) Following a referral to the sovereign People by Article 47.1, evidence of the collective will of the members of the sovereign People of Ireland, must be competently communicated to the President for his audit.

(viii) The Referendum Returning Officer retains, for a period of six months, the information from which the President must satisfy himself of the collective will of the sovereign People of Ireland and thereby comply with Articles 46 and 47 of the Constitution.

(ix) The Provisional Referendum Certificate dated 25 May A.D. 2015, published in Iris Oifiguil Number 42 on 26 May A.D. 2015 by Riona Ni Fhlanghaile, Referendum Returning Officer in relation to the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 fails to disclose the necessary data – including the number of members who consented, if any and the number on the register who did not - for the President to be satisfied that the threshold required by Articles 46 and 47 of the Constitution has been met.

(x) The Irish text in Articles 46 and 47 of the Constitution, makes clear that the President's duty, as the elected representative and auditor of the referendum for the sovereign People of Ireland, is to discover immediately the number of the sovereign People on the register and if a majority of that number of those members gave their informed consent according to law. Only then can he fulfil his duties to God and the sovereign People of Ireland, as required by Articles 46 and 47 and promulgate a proposal as a lawful amendment to the Irish Constitution.

(xi) The matters raised in this application for leave are of National importance, have not been properly addressed by the High Court or the Court of Appeal and the intervention of the Supreme Court is necessary to protect the sovereignty of the People of Ireland and their Constitution.”

“(i) I am seeking leave to appeal to the Supreme Court.

(ii) If successful I am seeking Leave to Petition the High Court challenging the Validity of the Provisional Referendum Certificate of the 34th Amendment to the Constitution (Marriage Equality) Bill 2015 And Articles 46 & 47 of the Constitution and to have the law declared on the following matters which impact upon the lower courts' refusals to grant leave.

(iii) A Declaration that the Result of the Referendum on the Thirty-fourth Amendment of the Constitution (Marriage Equality) Bill 2015 taken on 22 May A.D. 2015 should be declared Null and Void.

(iv) A declaration that a proposal to amend the Constitution must emanate from within the body of the People on the register of Presidential Electors and to define for future referenda what constitutes a valid proposal.

(v) A Declaration that the Government has acted outside of its Constitutional authority and contrary to Law by requiring in a Referendum that the sovereign People of Ireland shall be required, if it be the case that they do not approve, to formally deliver their veto to the proposed amendment as this acts in contempt of their sovereignty. A rights holder, by not giving their consent to a proposal has the same effect in law as if they had exercised their veto and so the two circumstances can not and do not need to be distinguished.

(vi) A Declaration that the amendment itself is repugnant to the Constitution as it would introduce irrationality on its face into the Constitution and therefore is not a proposal that the sovereign People of Ireland can lawfully be asked to consider for approval.

(vii) A Declaration that the amendment itself, by referring to a law that is yet to be enacted, is repugnant to the Constitution as it would introduce uncertainty into the Constitution and therefore is not a proposal that the sovereign People of Ireland can give their informed consent to and so can not lawfully be asked to consider for approval. Such a statute when enacted or amended would create immunity from being found repugnant to the Constitution. This would usurp the sovereignty of the People of Ireland.

(viii) A Declaration that the Amendment was not consented to by a majority of the sovereign People.

(ix) A pre-emptive Order that the costs of this case be granted to the Applicant on the basis that this matter is brought in the national interest and not for any personal benefit.”

9. The applicant is not asking the Court to depart from one of its own decisions.

10. The respondents in this application, Ireland the Attorney General, and Ríona Ní Fhlanghaile, the referendum returning officer, are referred to collectively as “the respondents”. The respondents opposed the application for leave to appeal.

11. The respondents did not accept the applicant’s characterisation of the attitude, reasoning or decision of the Court of Appeal.

12. The respondents opposed the application for leave to appeal on the following grounds:-

(i) The [applicant’s] application for leave to appeal the decision of the Court of Appeal should be refused. The issues raised by the [applicant] involve no matters of general public importance. Furthermore, it would not be in the interests of justice – and would, in fact, be contrary to the public interest identified in Jordan v Minister for Children and Youth Affairs [2015] IESC 33 in limiting uncertainty over the result of a constitutional referendum – for there to be a further appeal to the Supreme Court.

(ii) The [applicant’s] application should be refused in so far as it is based on claims about the referendum process which are unstateable as contrary to the provisions of Articles 46 and 47 of the Constitution. In particular, the claims advanced at points 2-10 of the reasons for leave to appeal are directly contradicted by the provisions of Article 47. 1. Furthermore, the arguments made by the [applicant] at grounds 4, 8, 9, 10, 11 and 12 are directly contradicted by the provisions of Article 46. 2.

(iii) The [applicant] is not entitled to put forward new arguments which were not advanced before the High Court or Court of Appeal. The claim at point 7, 8, 9 and 10 of the reasons for leave to appeal was not previously raised and cannot be raised at this juncture.

(iv) Further, or in the alternative, the [applicant’s] application for leave to appeal should be refused on the basis that it is contrary to established legal principles. There is no ambiguity or uncertainty in the relevant law such as might warrant the granting of leave to appeal. The [applicant’s] contention that the courts should review and impugn the content of a proposal to amend the Constitution is inconsistent with the clear jurisprudence of the Irish courts (Riordan v An Taoiseach (No 1) [1999] 4 IR 321, Riordan v An Taoiseach (No 2) [1999] 4 IR 343 and Morris v Minister for the Environment and Local Government [2002] 1 IR 326).

(v) The [applicant’s] claims regarding case management (ground 6) and costs (grounds 5 and 15) cannot be regarded as matters of general public importance. These are part of the necessary exercise of discretion by the High Court or Court of Appeal in the administration of justice (Dowling v. Minister for Finance [2015] IESCDET 13). The [applicant] has identified no exceptional circumstances which could warrant a grant of leave to appeal on this ground.

(vi) No matters of general public importance arise in circumstances where the application for leave is moot. Following the lifting of a stay by the Court of Appeal, the Master of the High Court issued written notification to the Referendum Returning Officer pursuant to section 41 of the Referendum Act 1994, as amended, such that the provisional referendum certificate became final and incapable of being questioned. The Thirty Fourth Amendment of the Constitution (Marriage Equality) Act 2015 was subsequently signed by the President.

13. This is an application for leave to appeal from the judgment, delivered ex tempore, by the Court of Appeal on the 30th July, 2015. That decision was an appeal from the judgment of the High Court (Kearns P.), delivered ex tempore, on the 5th June, 2015. Both of the above Courts dealt with the application as a matter of urgency, as does this Court.

14. The relevant law has been re-stated by this Court in McCrystal v. Minister for Children and Youth Affairs [2012] IESC 53 and Jordan v. Minister for Children and Youth Affairs [2015] IESC 33.

15. While the passage of a referendum proposal is a matter of considerable importance, the Court is satisfied that the decision of the Court of Appeal to dismiss the appeal from the refusal of the High Court to grant leave to issue a referendum petition does not involve any matter of general public importance.

16. The decision of the Court of Appeal included the application of the principles of law set out in McCrystal v. Minister for Children and Youth Affairs [2012] IESC 53 and Jordan v. Minister for Children and Youth Affairs [2015] IESC 33.

17. There is no ambiguity or uncertainty in the law and no reason to question the application of those principles to the facts of this case.

18. The Court is satisfied that the constitutional threshold for leave to appeal to this Court has not been met.

19. There is no substance to the points raised by the applicant.

20. The grounds advanced by the applicant as to the referendum process are ill- founded as being contrary to the Constitution, in particular Articles 46 and 47.

21. Legal arguments may not be advanced in this application which were not before the Court of Appeal

22. It is well established that issues of case management by a trial or appeal court are essentially a matter for that Court. As was stated in Dowling & Ors v. Minister for Finance [2015] IESCDET 13:

“21. In general this Court would be reluctant to grant leave to appeal from a directions hearing of a Court. Case management is a critically important aspect in ensuring that cases are heard with reasonable expedition.

22. The necessary exercise of discretion by a judge in a directions hearing is a crucial component in the administration of justice. Thus, it would be in exceptional circumstances only that the Court could be satisfied that an application from a directions decision would satisfy the constitutional threshold, i.e. that the decision involves a matter of general public importance, or in the interests of justice it is necessary that there be an appeal to the Supreme Court. The Court is not satisfied that this is such exceptional circumstances, as the Court is not satisfied that the application meets the constitutional threshold.”

23. In this urgent case the case management exercised by both the High Court and the Court of Appeal was an appropriate exercise of discretion by the court. There are no exceptional circumstances in this case, and the Court is not satisfied that the application on this ground meets the constitutional threshold.

25. The chronological sequence leading up to this application is as follows:-

(i) The decision of the High Court was delivered on the 5th June, 2015.

(ii) The decision of the Court of Appeal was delivered on the 30th July, 2015. In that judgment the President of the Court of Appeal lifted the stay that had been imposed by the Court of Appeal on the Certificate of the Referendum result.

(iii) The order of the Court of Appeal was perfected on the 31st July, 2015.

(iv) There was no application for a stay in the Court of Appeal by the applicant pending an appeal to the Supreme Court.

(v) Under the rules of the Superior Courts the applicant had 28 days to file his application for leave to appeal in the office of the Supreme Court; see O. 58, r. 16(1)

(vi) The applicant filed his application for leave to appeal in the Office of the Supreme Court on the 27th August, 2015, and served it on the respondents on the 28th August, 2015.

(vii) The respondents filed their response on the 2nd September, 2015.

(viii) However, the Master of the High Court issued written notification to the Referendum Returning Officer pursuant to s. 41 of the Referendum Act, 1994, as amended.

(ix) The Referendum Returning officer received written notification from the Master of the High Court on Monday, 24th August, that no leave was granted by the High Court to present a referendum petition in respect of the Referendum on the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015.

(x) On the 28th August, 2015, the Referendum Returning Officer endorsed on the certificate that it had become final.

(xi) On the 29th August, 2015, the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 was signed by the President of Ireland.

(xii) On the 1st September, 2015, the official Notice of Promulgation was given in Irish Oifigiúil.

27. There is no automatic stay on an order of a Court. The Court of Appeal lifted the stay that it had imposed on the Certificate of the Referendum Result. There was no application by the applicant to the Court of Appeal for a stay after it had delivered its judgment. Consequently, no stay was in existence after the decision of the Court of Appeal.

28. As this is an application by a lay litigant the Court considered the merits of his application for leave to appeal to this Court. It may well be that if he had been legally represented that his counsel would have applied for a stay at the conclusion of the judgment of the Court of Appeal. Such an application might or might not have been successful.

29. This highlights the necessity for practitioners and members of the public who seek leave to appeal to this Court to address the question of a stay in the Court below.

30. Also relevant is the respect due to the legal process by other organs of State. In the event, in this case there was no adverse consequence. However, in another situation very serious constitutional consequences might have occurred had this Court considered it appropriate to grant leave on any grounds when the certificate had become final and the Constitution amended.

31. In all the circumstances, the Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

And It is hereby so ordered accordingly.