The Court of Appeal has dismissed Joanna Jordan’s appeal against a High Court decision refusing her leave to petition against the provisional result of the May 2018 referendum on the Thirty-sixth Amendment of the Constitution Bill.
The court, in a judgment delivered by President Birmingham on 27 August 2018, upheld the High Court’s refusal to let Jordan present a petition under section 42 of the Referendum Act 1994. The petition sought to have the provisional referendum certificate declared null and void. The court did not determine a petition on its merits: it ruled that the evidence did not meet the threshold for permission to bring one.
The provisional certificate recorded 1,429,981 votes in favour and 723,632 against, a majority of 706,349. The Court of Appeal said the result had presumptive validity and that a person seeking to challenge it faced a heavy burden to show that an irregularity could have materially affected the outcome.
Jordan argued that government ministers had campaigned improperly for a Yes vote and raised alleged problems with the electoral register and voting process. The court said ministers were entitled to campaign for constitutional change, including repeal of an existing constitutional right, provided public funds were not used to support one side. It said the public-funding issue did not arise in this case.
On the register, Jordan’s affidavits included claims about voters being deregistered, people receiving multiple polling cards, and ballot-box tallies and handling. The court agreed that much of the material was assertion, speculation or hearsay. It said the information suggested, at most, a few cases in which cards may have been wrongly issued and possibly a small number of improper votes. There was no evidence that alleged over-registration advantaged either side or could have materially affected the result.
The court also refused to admit a further affidavit submitted during the appeal. It held that the High Court proceedings had finally disposed of the leave application, so special leave was required to introduce new evidence, and the application did not meet the relevant criteria. The court said the proposed material would not change its assessment.
The appeal was dismissed. The refusal of leave to present the petition therefore remained in place.