The High Court has dismissed Joanna Jordan’s challenge to the constitutionality of parts of the Referendum Act 1994, following her unsuccessful petition over the 2012 Children’s Referendum. The ruling did not retry the referendum petition: the parties agreed the court could rely on the evidence and findings from those proceedings, despite Jordan’s appeal against their outcome being pending in the Supreme Court.
The Supreme Court had ruled in November 2012 that parts of the Government’s referendum booklet, website and advertising breached constitutional principles requiring public spending to be fair, equal and impartial. It granted a declaration but no injunction. The referendum went ahead on 10 November 2012, with 615,731 votes in favour and 445,863 against.
Jordan later obtained leave to present a petition challenging the result. Leave required a prima facie case that the alleged wrongdoing may have materially affected the result. After hearing the petition, however, the High Court found she had not proved on the balance of probabilities that the result as a whole had been materially affected, and dismissed it. The petition ruling was under appeal when this separate challenge was heard.
Jordan argued that the 1994 Act was constitutionally deficient because it placed the burden on a petitioner to prove material effect, did not shift that burden to the State after a constitutional breach was established, and lacked a power to postpone a referendum. She also sought declarations under the European Convention on Human Rights Act 2003 and relied on the Venice Commission’s Code of Good Practice on Referendums.
Justice McDermott held that the Act’s petition procedure could address unconstitutional campaign conduct and, if the result as a whole were proved to have been materially affected, permit the poll to be retaken in some or all constituencies. The court rejected the claim that the burden of proof was impossible to meet or created immunity for the State. It said the civil standard of proof applied, and that the result could not be set aside merely because a constitutional breach had occurred.
The judge also rejected the postponement argument. The issue was moot after the referendum had been held and the petition had failed. The ruling noted that the courts had not been asked to stop this referendum in advance, and that legislation is for the Oireachtas. It found the existing remedies adequate and dismissed the constitutional and Convention claims. The judgment did not alter the referendum certificate or order another poll.