The High Court has dismissed an application to annul the result of the November 2012 Children’s Referendum. Joanna Jordan, a No vote campaigner, based her application on a November 2012 Supreme Court ruling, McCrystal v. Minister for Children and Youth Affairs & Ors [2012] IESC 53, which said that the Irish government’s public information materials were biased towards a Yes vote.
The Supreme Court in the McCrystal case said that €1.1 million of public monies had been spent to promote a Yes vote in the Children’s Referendum through an information booklet, website, and advertising. This breaches principles developed in a 1995 Supreme Court decision, McKenna v. An Taoiseach (No. 2) [1995] 2 I.R. 10 – namely that intentional partisan spending government expenditure is undemocratic because it is unfair, unbalanced, unequal or partial, and can be restrained by the courts. The Court in McCrystal said the government funded campaign constituted a clear disregard for the rights of citizens to take part in an impartial referendum in accordance with the norms of a democratic process mandated by the Irish Constitution.
Click here to read an analysis on Cearta.ie about the McKenna decision.
Click here to read a discussion on Cearta.ie about the McCrystal decision.
Joanna Jordan’s application in this latest case sought permission to bring a claim that the government’s unconstitutional behaviour and expenditure affected the result of the referendum. Ms Jordan argued that the breaches in question were so egregious and serious in themselves that it was likely that they had an impact on the decision making of the electorate and materially affected the outcome of the referendum. The Minister for Children and the Attorney General argued that McCrystal said that because aspects of the Children’s Referendum information campaign were at odds with the McKenna principles did not mean the court had to set aside the result of the referendum.
The High Court said that there was a very high burden of proof on the applicant in cases like this. Justice McDermott cited the judgment in Hanafin v. Minister for the Environment 2 I.R. 321 which said “This court will not lightly set aside what appears, prima facie, to be an Act of the Sovereign people. Unless, therefore, what has happened is an express and obvious constitutional abuse affecting the outcome of the Referendum, the onus of proof on the petitioner will be a heavy one.”
The applicant put forward a number of expert witnesses who said there was a statistical correlation between receipt of the Government booklet and voting Yes. However the government’s expert witnesses said that in the absence of a properly designed study implemented at the time of campaign, it was not possible to come to a clear view that the unconstitutional expenditure of money by the Government affected the referendum result.
Ms Jordan also argued that the McCrystal judgment, which was issued 2 days prior to polling day, should have been followed by emergency legislation to postpone the polling day. She also argued that the government did not attempt to remedy the constitutional breaches identified by the Supreme Court in McCrystal. Justice McDermott raised doubt about whether the Supreme Court had power to review a Government’s failure to introduce emergency legislation.
Justice McDermott said Ms Jordan’s evidence established a fair bona fide or serious issue to be tried on the grounds set out in the petition which warranted the court’s consideration. However, on the balance of probabilities he was not satisfied that she succeeded in establishing the grounds for the referendum result to be overruled. The petition was therefore dismissed.
Click here to read an Irish Times article about the case.