Saturday 18 November 2017

Supreme Court dismisses Children's Referendum challenge


A seven judge Supreme Court has unanimously refused to sanction a re-running of the 2012 Children’s Referendum after finding a Dublin woman had failed to prove that an unconstititional government information campaign "materially affected" the outcome.


Mr Justice Donal O'Donnell said "unacceptable interference" with the will of the people arose from that information campaign.

When any information provided by the Government for referendums is different from that approved and disseminated by the Referendum Commission, there would be "an inevitable danger of partiality", he added.

The court today clarified the requirements to be met for a challenge to a referendum or election result to succced.

In four separate concurring judgments, the court dismissed Dublin homemaker Joanna Jordan's challenge to the constitutionality of laws governing the bringing of petitions disputing the results of referendums.  A certificate making the referendum result final can now be issued.

The court ruled Ms Jordan was not entitled to a re-running of the November 2012 referendum on grounds of the Supreme Court's own finding, made two days before the poll in a case brought by Dubliner engineer Mark McCrystal, that the Government's information campaign in the referendum breached the Constitution.

In her judgment, the Chief Justice, Ms Justcie Susan Denham, said there was "ample evidence" to support the High Court finding the evidence called on behalf of Ms Jordan was entirely insufficient to show the information camapign materially affected the outcome.  The relevant test required it be proved that the campaign substantially affected the end result, she said.

She was satisfied a reasonable person could not have a doubt about, and would trust, the provisional outcome of the referendum, the Chief Justice said.

Mr Justice O'Donnell said this case illustrated the importance of the need for those with the power to do so to strive to ensure future refereda should be resolved in the ballot box and not give rise to disputes and differences that lead to court proceedings. 

The responsibility for the "unacceptable interference" with the will of the people which the process occasioned in this case can be traced to the decision to spend €1.1m public monies "in a veyr short and sensitive period", he said.

If spent lawfully, that money would have just duplicated the efforts of the Referendum Commission established to provide "fair and neutral" information to the people, he said. Insomuch as any information provided by the Government is different from that approved and diseminated by the Commission, there would be "an inevitabe danger of partiality", he added.

Mattie McGrath
Mattie McGrath

The judge also said he hoped the court's judgments would clarify the position and limit challenges to referendums to matters with "a real likelihood" of setting aside a result. 

In dealing with Ms Jordan's claim that a test set out in the 1994 Referendum Act requiring that a person challenging a referendum result must prove unconstitutional conduct "materially affected" the outcome, the court set a new test to be applied when considering whether there was such material affect.

That test stipulates that "material affect" on the outcome of a referendum involves establishing that it is "reasonably possible that the irregularity or interference identified affected the result".

The object of this test was to identify the point at which it can be said that "a reasonable person could be in no doubt about, and no longer trust, the provisional outcome of the election or referendum", the court said.

In applying that test to this case, the court said relevant factors included the Supreme Court's decision in the McCrystal case, the actions of the Minister for Children, the fact some 52 per cent of the 33.49 per cent turnout voted for the referendum and 42 per cent voted against, and that the court had previously ordered a remedy in the McCrystal case.

Taking all those factors into account, the court ruled it had not been established it was "reasonably possible" that the actions of the Minuster for Children materially affected the outcome of the referendum as a whole.

Ms Jordan was in court for today's ruling, accompanied by Independent TD Mattie McGrath. Her supporters in court included former MEP Kathy Sinnott. Members of the Children's Rights Alliance were also in court for the decision.

Ms Jordan, Glenageary Road Upper, Dun Laoghaire, who campaigned for a No vote, previously obtained leave to bring a petition aimed at overturning the Yes result.

She relied on the Supreme Court finding in the McCrystal case that 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.

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. Those decisions established the McKenna Principles, to be adhered to in conduct of referendum campaigns.

The High Court had in 2013 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. The High Court also, in a later decision, rejected her challenge to the constitionality of the "material" affect standard.

A core issue in the appeal related to what test should be applied when a petition challenging a referendum result is brought where there has been an established breach of the McKenna Principles governing the conduct of referendum campaigns.

Ms Jordan argued the requirement in the 1994 Act that a petitioner challenging a referendum result must show that the established unlawful conduct had a “material” affect on the result was unconstitutional because it is impossible to prove. She also asked the court, if it rejected that first argument, to rule it was up to the State to prove lack of material effect.

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