Women begin legal action over referendum result

Monday 19 November 2012 23.36
The challenge is aimed at overturning the result of the Children's Referendum
The challenge is aimed at overturning the result of the Children's Referendum

Two women, a Dublin homemaker and a nursing home resident, have initiated a legal challenge aimed at overturning the result of the Children's Referendum.

The referendum was passed by a majority of 58% to 41% based on a 33.49% turnout.

The petition is by Joanna Jordan, a homemaker of St Kevin's Villas, Glenageary Road Upper, Dun Laoghaire, Co Dublin, who campaigned for a No vote in the referendum.

The second petitioner is Nancy Kennelly, a resident of Abbot Close Nursing Home, Askeaton, Co Limerick, who voted Yes by post before the Supreme Court ruled some information distributed by the Government during the referendum campaign was not impartial.

Mr Justice Iarfhlaith O'Neill today directed that the State be placed on notice of the application by the women for leave to bring a petition challenging the 10 November referendum result and he returned the matter to next Tuesday.

The women claim the Government's use of public money to fund an unbalanced information campaign on the proposed amendment to the Constitution amounted to wrongful conduct that materially affected the outcome of the referendum.

The Supreme Court, in a ruling earlier this month upholding Dublin engineer Mark McCrystal's challenge to the Government's information campaign, found "extensive passages" in the Government's information booklet and on its website about the referendum did not conform to the 1995 Supreme Court judgment in the McKenna case requiring referendums to be explained to the public in an impartial manner.

The material contained a misstatement as to the effect of the referendum, the court also found.

It granted a declaration the State parties "acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisement in relation to the Referendum on the Thirty First Amendment of the Constitution (Childrens) Bill in a manner that was not fair, equal or impartial."

Yesterday day, Mr Justice O'Neill agreed with Paul Sreenan SC, for the petitioners, they will need to have the text of the full Supreme Court judgment, to be delivered on 11 December, before their application for leave to bring the petition may be heard.

The women are also seeking leave to bring a parallel challenge to the constitutionality of those provisions of the referendum Act 1994 which require that those seeking leave to bring a petition challenging the outcome of a referendum must first show a referendum was "affected materially" by an irregularity.

The standard of "material" effect set out in Sections 42 (3) and Section 43 of the Referendum Act 1994 is too high, they claim.

Those Sections provide the High Court cannot grant leave to present a referendum petition unless it is satisfied there is prima facie evidence the result was affected materially by an offence set out in Part XXII of the Electoral Act 1992 or there was obstruction or hindrance to the conduct of the referendum.

Leave for a petition may also be granted if the court finds the result was affected materially by a mistake or other irregularity in the conduct of the referendum.

The woman contend the onus should be on the entity that has committed any wrongful conduct to show that breach did not have a material effect on the referendum.

Alternatively, they contend there should be no burden on a petitioner to show an effect on a referendum in order to be entitled to a remedy or, of there is to be a burden, that should go no further than requiring them to show the alleged wrongful conduct "may" have affected the referendum.

The petition is also supported by an affidavit by journalist John Waters, who advocated a No vote in the referendum.

In her affidavit, Ms Jordan said she felt very strongly it would be appropriate to vote No because she was unhappy the State would be given power to step into shoes of parents in making critical decisions affecting children.

She was extremely concerned about the Government's information material and believed it was one-sided and not impartial or balanced.

While campaigning for a No vote, it became apparent voters had a mistake understanding of the impact of the referendum and believed, for example, in certain extreme cases, children could not be taken into care unless the amendment was passed she said. It was obvious the Government information influenced people into voting yes, she said.

While she was not al all surprised at the Supreme Court decision on the McCrystal case, she believed that came far too late to make a difference and she was surprised and disappointed the Government did not postpone the poll given the ruling.

While she believed the breaches of the Constitution in this case materially affected the outcome of the referendum, and relied on the threshold of "material" effect was very onerous. It meant there was no effective remedy for such breaches of the Constitution and she believed a lower evidential threshold was required under the Constitution.

In her affidavit, Ms Kennelly said she is a retired lady residing in the Abbot Close nursing home. In voting by post in the referendum, she said she particularly relied on the information provided by the Government which appeared to her to be exclusively in favour of a Yes vote.

She placed particular emphasis on that information and trusted the Government to provide her with fair and impartial information.

She decided to vote yes and voted by post almost two weeks before the 10 November vote.

She later learned of the Supreme Court ruling when it was too late to change her vote and was "shocked and angered" at the outcome of the poll.

She believed she and others were hugely influenced by the Government's material and, had she had impartial information, may well have voted against the amendment, she said.

In a detailed affidavit, Mr Waters said the Government's information cannot but have influenced voters to vote yes and he expressed disappointment with the Government's response, particularly that of the Minister for Justice, to the Supreme Court ruling.

He believed the No campaign may well have been successful had the Government not breached the Constitution in its conduct, he said.

Mr Waters, having analysed the information provided by the Government in detail, said it amounted to an unbalanced and unfair presentation of the issues. The Government's booklet and website were "manifestly written" from the point of view of favouring the yes side, he said.