Thursday 21 September 2017

Children's Refendum challenge hearing within weeks

A WOMAN'S court action aimed at overturning the Yes vote in the Children Referendum is expected to be heard within weeks.

When the case by Joanna Jordan was mentioned today, Mr Justice Iarfhlaith O'Neill said he is available to hear it as soon as it is ready to proceed.

He was told by Paul Sreenan SC, for Ms Jordan, the State's defence was expected to be delivered later today. There were potential preliminary issues regarding the procedures to be adopted in the case and the sides were asking the court to deal with those next week, counsel added.

The judge said he would deal with those on January 24 when it is expected a full hearing date will also be fixed.

In her action, Ms Jordan will rely on last month's Supreme Court judgment upholding claims by a Dublin engineer, Mark McCrystyal, that the Government wrongly spent €1.1m public monies on a "one-sided"

referendum information campaign in "clear disregard" of the limits imposed by the Constitution on what the State may do in a referendum.

The Supreme Court unanimously found the Government's campaign was neither fair, equal, impartial nor neutral in many respects and clearly favoured passage of the referendum.

In his judgment, Mr Justice John Murray said the Government campaign breached the constitutional right of the people to a fair and democratic referendum process while Mr Justice Donal O'Donell said it was "revealing" that the Government's information booklet continued to be distributed after errors were identified in some of the material in that booklet.

Ms Jordan, a homemaker, of St Kevin's Villas, Glenageary Road Upper, Dun Laoghaire, campaigned for a No vote in the referendum and wants leave to bring a petition challenging the result. The amendment put before the people was passed by a majority of 58 to 41 per cent based on a 33.49 per cent turnout.

She is also challenging he constitutionality of provisions of the Referendum Act 1994 which require, before the High Court may permit any petition to be brought, the petitioner must show that alleged wrongful conduct had a "material" effect on the outcome.

She claims the "material effect" standard is too high and means there is no effective remedy for such breaches of the Constitution. A standard of "may have [affected the result]" is adequate and the onus of proof should also be on the alleged wrongdoer to prove the referendum was not affected by their conduct, she argues.

Ms Jordan alleges the Government's information campaign did materially affect the outcome but contends, rather than she having to prove that claim, the Government should be required to prove its campaign did not affect the outcome.

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