Thursday 18 October 2018

High Court rejects challenge to Children's Referendum

Dublin woman Joanna Jordan ‘fails to produce evidence to justify order overturning Yes result’

The High Court in Dublin
The High Court in Dublin

A High Court judge has ruled that Dublin woman Joanna Jordan has failed to produce evidence to justify an order overturning the Yes result of the Children's Referendum.

Ms Jordan's lawyers have asked the court to place a stay on his issuing a certificate rendering the referendum result official and the judge will consider that application later today.

Joanna Jordan, of St Kevin's Villas, Glenageary, who campaigned for a No vote in the November 2012 poll, was in court today when Mr Justice Paul McDermott read his lengthy reserved judgment rejecting her case. 

Former MEP Kathy Sinnott and Dublin engineer Mark McCrystal, who last November won his action alleging the Government's information campaign in the referendum was one-sided, were among supporters of Ms Jordan on court.

Before a petition may be brought, the Referendum Act 1994 requires a petitioner to show there had been unconstitutional wrongdoing likely to have a "material effect" on the outcome of a referendum.

In this case, Mr Justice McDermott said there was prima facie evidence of unconstitutional conduct by the Government arising from the Supreme Court decision in Mr McCrystal's case that the Government acted unlawfully in spending €1.1m public monies on a one-sided information campaign.

However, the judge said, he then had to consider whether such conduct had a material effect on the outcome of the referendum as a whole. The November 10th 2012 referendum was passed by a margin of 58 to 42 per cent based on a 33.49 per cent turnout.

He found the evidence from experts and others for Ms Jordan was not sufficient for the court to find, on the balance of probabilities, that the Government's information booklet, website and advertising had a material effect on the result of the referendum.

Ms Jordan's witnesses included political scientist Dr Michael Bruter of the London School of Economics, British advertising expert Robert Heath and journalist John Waters.

Professor Michael Marsh, Professor of Comparative Political Behaviour at Trinity College, Dublin, gave evidence for the Government to the effect the Government information had very little effect on the referendum result..He also challenged the methodologies used by Dr Bruter.

The judge said he preferred the evidence of Prof Marsh to that of Dr Bruter.

The judge also said what was missing from the plaintiffs' experts analysis was any "real engagement" with what was happening in the referendum campaign.  While many sectors of Irish society  had been "convulsed" with a whole range of issues affecting children, Dr Bruter had no knowledge of that background. 

The court would need clear and cogent evidence to be satisfied the Government booklet influenced the referendum or materially affected it as whole and there was no such evidence, he ruled.

The website had had 23,000 unique visitors in the course of its life and thee was no evidence as to its influence on those visitors, he said.  Given the size of the majority in the referendum, it could have had only a minimum effect, he found.

He also found print, tv, radio and social media advertisements had not been shown to have had a material effect on the poll outcome.

He rejected arguments, had the referendum been delayed to allow the public more time to consider the impact of the Supreme Court ruling in the McCrystal case, the referendum could have been defeated.

The McCrystal decision was extensively reported and discussed on many media outlets, including RTE, TV3 and the print media, the judge said. .The Supreme Court ruling was a "short, focussed and definitive condemnation" of the expenditure of public funds on a one-sided campaign and was reported as such, he said.

The judge rejected further arguments by Ms Jordan that, rather than she having to prove the Government campaign had a material effect, the Government should be required to prove it did not.  There was no basis for altering the onus of proof as provided for by the Referendum Act which placed it on a petitioner, he held.

The issue of costs in the proceedings by Ms Jordan, of St Kevin's Villas, Glenageary Road Upper, Dun Laoghaire, Co Dublin, will be decided later.

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