Sunday 18 November 2018

Children’s Referendum should be re-run 'due to Constitution breach', Supreme Court hears

Joanna Jordan, Glenageary Road Upper, Dun Laoghaire, who campaigned for a No vote, has brought the appeal. Photo: Julien Behal/PA Wire
Joanna Jordan, Glenageary Road Upper, Dun Laoghaire, who campaigned for a No vote, has brought the appeal. Photo: Julien Behal/PA Wire

The Children’s Referendum should be re-run because of a Supreme Court finding the Government’s information campaign in that ballot breached the Constitution, it was argued today.

The argument was made in the Supreme Court on the opening day of appeal over a woman's unsuccessful High Court challenge to November 2012 vote in favour of the referendum.

Joanna Jordan, Glenageary Road Upper, Dun Laoghaire, who campaigned for a No vote, has brought the appeal.

Although the State maintains the result should not be interfered with and that re-running the referendum would be an “awesome” task, previous Government decisions to re-run the Lisbon and Nice Treaty referendums after the people rejected both involved an "even more awesome" task,  her counsel Paul Sreenan said. 

The 1994 Referendum Act specifically envisages the result of a referendum being interfered with and the Supreme Court has power to annul a referendum result and order the referendum be re-taken, he said.

A fresh referendum must be held given the Supreme Court finding the Government “clearly and unequivocally” breached the constitutional process governing the conduct of referendums, he submitted.

“The Constitution requires an effective remedy for wrong,” he said.

This was about upholding the constitutional rights of all of the electorate “to vote freely, to a fair and democratic process, to equality and to fair procedures”.

The entire electorate, not just No voters, were affected by this unconstitutional conduct and this case was about “upholding popular democracy”.

Mr Sreenan was opening the appeal by Ms Jordan against the rejection of her challenge to the constitutionality of laws governing the bringing of petitions disputing the results of referendums.

Ms Jordan previously obtained leave to bring a petition aimed at overturning the Yes result, achieved by a majority of 58 to 42 per cent, based on a 33.49 per cent turnout.

She relied on the Supreme Court finding the Government spend of €1.1m public monies on a one-sided information campaign favouring the referendum amounted to a clear disregard of the limits imposed by the Constitution on what the State may do in a referendum.

That finding, issued two days before the referendum, was made in a separate case on the same referendum brought by Dublin engineer Mark McCrystal.

Ms Jordan also relied on landmark Supreme Court decisions in proceedings by former Green Party MEP Patricia McKenna that the State is prohibited by the Constitution spending public monies to advocate support for a particular side in a referendum.

The High Court last year rejected Ms Jordan's petition on grounds she had failed to prove the Government's information campaign "materially" affected - as required by the 1994 Referendum Act -  the outcome. Last June, the High Court also rejected her challenge to the constitutionality of the "material" effect standard.

Her appeal against both decisions, listed for four days, is being heard by a seven judge Supreme Court due to the constitutional issues raised.

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