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Citation: 1 Trinity C.L. Rev. 37 1998

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1998]

Men of Straw? Change to the Rules of Locus Standi

3'

MEN OF STRAW?
CHANGE TO THE RULES OF LOCUS STANDI:
AN UNSUSPECTED SIDE EFFECT OF THE

McKENNA AND HA NAFIN DECISIONS

ORAN DOYLE*
Introduction
For the litigious person, the crank, the obstructionist, the
meddlesome, the perverse, the officious man of straw and many
others, the temptation to litigate the constitutionality of a law,
rather than to observe it, would prove irresistible on occasion.'
The rules of locus standi in constitutional adjudication attempt to
filter out those spurious actions where the plaintiff has no real interest
in the cause of action, thus ensuring that only genuine litigants are
heard. Although this might appear to be a minor issue, it has an
important impact both at a theoretical and at a practical level. There
are two basic theoretical approaches to the question of standing,
although most jurisdictions probably fall somewhere between the
two. 2 The courts may insist that a litigant be able to demonstrate that
she has suffered actual detriment in order to proceed with a
constitutional action. Alternatively, the courts may take the view that
all citizens have standing simply by virtue of their interest in seeing
the Constitution observed. A strict insistence on standing suggests an
orthodox social contract type constitutional order. However, if parties
without strict standing can take constitutional actions and if the
Constitution is thus seen to lay down enforceable norms of behaviour
for the State (as opposed to simply rights for citizens), then we have a
more novel constitutional structure. At a practical level, the question
Junior Sophister Law student, Trinity College, Dublin.
Cahill v. Sutton [1980] IR 269, 284 per Henchy J.
2 East Donegal Co-operative v. Attorney General [1970] IR 317, 338.

Trinity College Law Review

[Vol. I

of locus standi for any litigant is obviously crucial, as it poses a

potential bar to litigation.
The purpose of this article is not to examine the merits of these
opposing views. 3 Rather is it to examine the application of the rules
of standing, particularly in the cases of McKenna v. An Taoiseach
(No. 2) 4 and Hanafin v. Minister for Environment.5 It is my
contention that the courts have failed to give adequate consideration
to the standing issues in these cases, with the result that they have
implicitly extended the enforceability of constitutional imperatives
and diluted the effect of the standing rules.

Previous Case Law

In the seminal case of Cahill v. Sutton, 6 Henchy J. introduced the rule
of locus standi into the Irish Constitution. He saw it as a rule of
practice necessitated by the separation of powers and the
administration of justice. The essence of the rule is thus: in order to
challenge an Act, one must show detriment, actual or apprehended,
which one does/would suffer as a result of the Act's operation.7 The
judge himself foresaw that there might be countervailing
considerations which could justify exceptions to the rule.8 Two such
exceptions have been recognised: the exception that concerns us is
that which allows constitutional imperatives to be enforced.
In Crotty v. An Taoiseach,9 the plaintiff was allowed to proceed
with his action against ratification of the Single European Act. While

3 However, a basic understanding of the two views is necessary for the purposes of this
article.
4 [1995] 2 IR 10.
[1996] 2 IR 321.
6 [1980] IR 269. The plaintiff in this case claimed that s.l I of the Statute of Limitations 1957
was unconstitutional because it placed a three year time bar on the bringing of a personal
injuries action. The plaintiff argued that if somebody did not become aware of their injury
until after three years, their right of access to the courts would be unjustly restricted.
However, Mrs Sutton had known of her injury. As such, it is probable that the court was
?rimarily concerned with the issue of ius tertii.
Ibid. at 286.
8 Ibid. at 285.
[1987] IR 713.

1998]

Men of Straw? Change to the Rules of Locus Standi

39

this might have been seen as allowing an actio popularis10 into Irish
law, it is suggested that the ratio in Crotty was somewhat narrower.
Finlay C.J. spoke for the court on the question of standing.
[I]n the particular circumstances of this case where the
impugned legislation, namely the Act of 1986, will if made
operative affect every citizen, the plaintiff has a locus standi to
challenge the Act notwithstanding his failure to prove the threat
of any special injury or prejudice to him, as distinct from any
other citizen, arising from the Act. I
It is thus clear that the court was not allowing a right of action for
every breach of the Constitution, but was rather limiting constitutional
actions to situations where the impugned provision would have some
effect, however diluted. In Riordan v. Spring12 Budd J. seems to have
endorsed this view by speaking of "consequences which may
ultimately affect himself and other citizens". 13 However, in Iarnrod
Eireannv. Ireland,14 Keane J. adopted a different analysis and divided
locus standi cases into two types: those where no better qualified
plaintiff is likely to emerge (such as Crotty) and those where a better
plaintiff might emerge (such as Cahill v. Sutton). He stated that there
would be standing in the former but not in the latter. I would submit,
however, that this approach confuses the ius tertii 5 element of Cahill
v. Sutton with the locus standi element of that case. It also does not
tally with the Crotty judgment which placed clear emphasis on the
requirement of actual detriment.
The Effect of Hanafin and McKenna
A week before the Fifteenth Amendment to the Constitution was
passed, Ms. McKenna succeeded in her action claiming that the
10Whereby every citizen would have a right in itself to see the Constitution observed by the
organs of government.
" [1987] IR 713, 766.
12Unreported, High Court, 8 December 1995.
13Ibid. at p. 23.
:4 [1995] 2 ILRM 161.
'5 It was SPUC v. Coogan [1989] IR 734 which authorised this relaxation of the rules on ius
tertii.

Trinity College Law Review

[Vol. I

expenditure by the Government of public money advocating a "yes"

vote was unconstitutional. Following the referendum, Mr. Hanafin
sought to have the result of the referendum declared invalid because
of the unconstitutional expenditure of public money. He failed.
These cases deal with the same issue and it is my intention to consider
them jointly.
However, some might argue that there was a real difference
between McKenna and Hanafin in that the former was prospective
while the latter was retrospective. Thus, under their interpretation,
while Ms. McKenna could prove that the result of the referendum
might be affected by the expenditure of money by the Government,
Mr. Hanafin could not prove that the result had actually been affected.
This view offers a different reading of the Hanafin judgment to that
which I outline later. As this article turns on the interpretation of
Hanafin, it is necessary to refute this alternative reading. First, Cahill
v. Sutton drew no distinction between actual and apprehended
detriment. Secondly, given that the result of the referendum was so
close (a majority of just .56%), it is hard to see how Ms. McKenna
could have proven that the result of the referendum would be affected
when such a small majority could not be accredited to the
Government's advertising campaign. Thirdly, no judge in McKenna
said that the plaintiff could prove that the referendum would be
affected: it was a question which was ignored. Fourthly, no judge in
Hanafin was prepared to say that Mr. Hanafin had failed where Ms.
McKenna had succeeded: i.e. in showing that, the Government's
expenditure had some material effect.' 6 In conclusion, rather than
rely on a supposed ratio which has no foundation in previous case
law, in the decisions themselves or in fact, it is better to focus on what
the judges actually said and to treat the two cases as conforming to the
same logic.
In the McKenna case, Keane J. quickly disposed of the question of
standing and his view was endorsed on appeal by the Supreme
Court. I He stated simply that the Crotty judgment facilitated a
broader approach to locus standi and that therefore the plaintiff had
16

O'Flaherty J. considered the question of material effect in some depth, before deciding that

it was incapable of proof (at 437). However, he did not say that the situation was any
different for Ms. McKenna.
17 [1995] 2 IR 10, 40.

1998]

Men of Straw? Change to the Rules of Locus Standi

41

standing to make her argument. 18 The broader approach of Crotty

was that a litigant may proceed with her action where she can
demonstrate that the impugned provision has some general effect.
Thus, applying Crotty,19 Ms. McKenna's standing must have derived
from the fact that the Government's expenditure of money had some
general effect. In this itself there is nothing problematic. The
problem arises when we consider the substantive issue of the cases
(particularly of the second case, Hanafin). Mr. Hanafin's action
failed because he could not show that the outcome of the referendum
had been materially affected by the expenditure of the money. I
would submit that the locus standi issue in McKenna coincided with
the substantive issue in Hanafin. That is, if Mr. Hanafin could show
that the result of the referendum was materially affected, then it could
be shown that everybody in general was affected by the action of the
Government. Conversely, if Mr. Hanafin could not demonstrate that
the result had been materially affected, it becomes difficult to see how
it could be shown that everybody in general was -affected by the
actions of the government. That is, it becomes difficult to see how
Ms. McKenna could have had standing under the test laid down in
Crotty.
Hamilton C.J. denied relief to Mr. Hanafin because he had failed to
show that the result of the referendum had been affected. The Chief
Justice reasoned as follows:
It is not sufficient to establish an interference with the conduct
of the referendum by way of a constitutional wrong: it must be
further established that the result of the referendum as a whole
was affected materially by the said constitutional wrongdoing.20
Clearly implicit in this statement is that one can have a constitutional
wrong which has no material effect. The Court saw the expenditure
of money as an interference with the conduct of the referendum, with
the democratic process; and, as such, it was constitutionally wrong.
8 Ibid. at 15.

19 Although I have suggested that Keane J. has a different understanding of Crotty, it is

necessary to apply the Crotty test in order to explore the thesis of this article: namely, that
McKenna and Hanafin have implicitly overruled Crotty.
20 [1996] 2 IR 321, 429.

Trinity College Law Rcview

[Vol. I

However, following the judgment in Hanafin, we know that the court

also thought that the result of the referendum as a whole was not
materially affected by the expenditure of the money. That is, the
people would still have voted the same way had no money been spent.
Therefore, everybody in general was not affected by the expenditure
of money.
The courts must be taken to have implicitly expanded the extent to
which constitutional imperatives can be enforced. The locus standi of
Ms. McKenna must thus have come simply from the fact that the
Government had normatively breached the provisions of the
Constitution by their expenditure of money. 2t As everybody in
general was not affected by that expenditure, the locus standi could
not have been rooted in general effect. While it might be argued that
everybody in general is affected by an interference with the
democratic process, even if it has no material effect, that merely states
(in different words) that a purely normative breach of the Constitution
grounds a right of action.

Conclusion
No one view of the rules on locus standi is necessarily the correct or
best view. However, the cases of McKenna and Hanafin are still a
major cause for concern. It is the fact that the courts ignored (or
covertly relaxed) the rules on standing that is worrying. It raises the
suspicion that the rules of locus stdndi do not operate to exclude crank
litigants (thus saving court time) but rather to include litigants with
interesting arguments. 22 If that suspicion is well founded, we might
begin to wonder why, in this age of test case litigation, those
meddlesome and dreaded men of straw no longer pose such a threat to
the administration of justice.

21

If this reading of the case is correct, it is probable that the current position of the law is as

stated by Keane J. in IarnrodEireann v. Ireland [1995] 2 ILRM 161.

22 This view is perhaps supported by reference to Campaign to Separate Church and State v.
Ireland [1996] 2 ILRM 241. There Costello P. felt that his negative finding on the
substantive argument meant that he did not have to consider whether the plaintiffs had
standing (at 259). This seems a rather curious use of a filtering device.