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Judgment
Title:
Re. Referendum Act & re. Jordan and Jordan -v- Minister for Children and Youth Affairs & ors
Neutral Citation:
[2015] IESC 33
Supreme Court Record Number:
432/13 & 342 & 361/14
High Court Record Number:
2012 152 IA, 2012 11697 P
Date of Delivery:
04/24/2015
Court:
Supreme Court
Composition of Court:
Denham C.J., Hardiman J., O'Donnell Donal J., Clarke J., MacMenamin J., Laffoy J., Dunne J.
Judgment by:
MacMenamin J.
Status:
Approved
Result:
Dismiss
Details:
Dismiss both appeals. See also Information Note at the top of each judgment.
Judgments by
Link to Judgment
Concurring
Denham C.J.
MacMenamin J., Laffoy J., Dunne J.
O'Donnell Donal J.
Hardiman J., Clarke J., MacMenamin J., Laffoy J., Dunne J.
Clarke J.
MacMenamin J., Laffoy J., Dunne J.
MacMenamin J.
Laffoy J., Dunne J.


Information Note

INFORMATION NOTE
THE SUPREME COURT

The Ms. Joanna Jordan Judgment

1. In a unanimous decision of the Court, the appeals by Ms. Jordan are dismissed.

2. Judgments are delivered by Denham C.J., O’Donnell J., Clarke J., and MacMenamin J.

3. The Court delivers judgment on two appeals brought by Joanna Jordan, the appellant, and referred to as “the appellant”, from a judgment of the High Court delivered on the 18th October, 2013, [2013] IEHC 458, in proceedings brought in relation to a provisional referendum certificate, and from a judgment delivered on the 20th June, 2014, [2014] IEHC 327, in plenary proceedings challenging the constitutionality of sections of the Referendum Act, 1994. The respondents, the Minister for Children and Youth Affairs, the Government of Ireland and the Attorney General, are referred to collectively as “the Minister”.

4. In these appeals a constitutional balance is required in circumstances where it has been held that there has been a breach of the McKenna principles by the Minister, see McCrystal v. The Minister for Children and Youth Affairs & Ors [2012] 2 I.R. 726, and there has been an exercise in popular sovereignty in a referendum by the People. A harmonious balance is sought between the competing constitutional principles, obligations and rights. In this case the Court refines and clarifies the test to be applied when the outcome of a referendum is challenged, in order to seek a balance between making too easy the overturning of a decision made by the people, and on the other hand making a genuine challenge so difficult as to be practically impossible. Applying this test in this case the Court unanimously dismisses the challenge to the outcome of the Referendum.

5. At the centre of these appeals is (i) the issue of construction in the Referendum Act, 1994, as amended, referred to as “the Act of 1994”, in particular of ss. 42(1), 42(3), 43(1), 47, 48, and 57(1) of the Act of 1994, and, (ii) the test to be applied by a court in considering a provisional referendum certificate.

6. Section 42 of the Act of 1994 provides the process whereby a query may be raised of a provisional referendum certificate. The principal focus of the argument concerned the party on whom the burden of proof lay, and whether the question of the material affect of any established wrongdoing was only relevant (as the appellant asserted) at the ex parte leave stage or remained an issue at the full hearing. The Court finds that the onus rests on the appellant and that the issue of materiality remains before the Court at a full hearing.

The test

7. The test to be applied is:-


    “… ‘material affect on the outcome of a referendum’ involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person could be in doubt about, and no longer trust, the provisional outcome of the election or referendum.”

Factors

8. In applying the test to a case, the individual factors of that case will have to be considered. The list of relevant factors will depend on the circumstances of each case.

9. In this case relevant factors include:-


    • The matter raised, i.e. the decision of this Court in McCrystal.

    • The actions of the Minister.

    • The statistics of the referendum.


In this case a provisional referendum certificate was published in Iris Oifigiúil dated 12th November, 2012, on 13th November, 2012. It set out the result as follows:-

    • The total number of votes recorded in the referendum in favour of the proposal was 615,731.

    • The total number of votes recorded in the referendum against the proposal was 445,863.

    • A majority of the votes recorded at the referendum was recorded in favour of the proposal.


Thus 33.49% of the eligible electorate voted. 58% of those who voted, voted in favour of the proposed amendment. 42% of those who voted, voted against the proposed amendment. The margin between those who voted in favour and those who voted against is a significant factor.

    • Also, a factor in this case is that a remedy has already been ordered in McCrystal.

10. Applying the test to the circumstances of these appeals, the Court finds that it has not been established that it is reasonably possible that the actions of the Minister materially affected the outcome of the referendum as a whole.

11. The Court dismisses the appeals of Ms. Jordan, both as to the petition and on the plenary proceedings.

12. The Court would confirm, without alteration, the provisional referendum certificate, and would cause a statement of the fact of such confirmation to be endorsed on such certificate, and the endorsed certificate to be returned forthwith to the referendum returning officer. Consequently, when the endorsed provisional referendum certificate is received by the referendum returning officer forthwith it will become final and be conclusive evidence of the result of the referendum.

Signed Off












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