IEHC 438
THE HIGH COURT
[2018 No. 59IA]
IN THE MATTER OF THE REFERENDUM ON THE PROPOSAL TO AMEND THE CONSTITUTION CONTAINED IN THE THIRTY SIXTH AMENDMENT OF THE CONSTITUTION BILL 2018 HELD ON THE 25TH DAY OF MAY 2018
AND IN THE MATTER OF AN INTENDED PETITION
IRELAND, THE ATTORNEY GENERAL AND THE REFERENDUM RETURNING OFFICER
JUDGMENT of Mr. Justice Kelly, President of the High Court delivered on the 20th day of July, 2018
1. The applicant (Ms. Jordan) seeks leave from this court, pursuant to the provisions of s.42 of the Referendum Act 1994 (the Act), to present a petition seeking to have declared null and void the provisional referendum certificate signed on 28th May, 2018 and published in Iris Oifigiúil on 29th May, 2018.
2. This case was heard consecutive to that of Mr. Byrne [2018 No. 601A] and relates to the same referendum.
3. Whilst the cases were different, much of what I had to say concerning the referendum in question, the statutory and constitutional background, the onus of proof, and the case law are relevant to this case. Accordingly, this judgment should be read in conjunction with the one which I have just delivered in that case.
4. In order to succeed on this application Ms. Jordan has to produce prima facie evidence that the result of the referendum as a whole was affected materially by one or other of the four matters prescribed in s.43 of the Referendum Act 1994 (the Act). These are:-
5. Section 42(3) of the Act prohibits this court from granting leave to present a referendum petition unless it is satisfied that there is prima facie evidence of a matter referred to in s.43 and that the said matter is such as to affect materially the result of the referendum as a whole.
“(a) the commission of an offence referred to in Part XXII of the Act of 1992 (as applied by section 6),
(b) obstruction of or interference with or other hindrance to the conduct of the referendum,
(c) failure to complete or otherwise conduct the referendum in accordance with this Act, or
(d) mistake or other irregularity in the conduct of the referendum or in the particulars stated in the provisional referendum certificate.”
6. Ms. Jordan makes no complaint concerning the Referendum Commission and it is not a party to these proceedings.
7. Ms. Jordan makes two complaints. The first concerns the involvement of the Minister for Health in the “Yes” campaign. The second raises issues concerning the register of electors. I will deal with each in turn.
The Minister for Health
8. Ms. Jordan contends that she has raised prima facie evidence that the role of the Minister for Health in the campaign to repeal the 8th Amendment to the Constitution was in disregard of the Constitution and amounted to unlawful influence or pressure being created which interfered with the formation of voters opinions and thus amounted to an unlawful interference with the conduct of the referendum. She contends that it is “reasonably possible that this irregularity affected the outcome of the poll”. (My emphasis)
9. The complaints made against the Minister are set out in the first and second supplemental affidavits sworn on 7th June, 2018 and 20th June, 2018 respectively. This is what she says in the affidavit of 7th June, 2018:-
10. Her second supplemental affidavit is in reply to that sworn by Mr. Barry Ryan the Referendum Returning Officer in which he indicated that there was no basis identified by Ms. Jordan and no evidence proffered to the court upon which the outcome of the poll could be reasonably questioned. This is what Ms. Jordan has to say on that topic insofar as she makes complaint against the Minister:-
“2. I say and believe that the Minister for Health, Simon Harris, played a prominent role throughout the 8th Amendment (Yes) referendum campaign and ultimately was its chief proponent. I say this prominence was epitomised by his being put forward by the Yes campaign as their representative in the final television debate.
3. I say that in his role in the referendum that the Minister’s public office and his campaigning were clearly overlapping. I say that in addition he was and was constantly been (sic) identified as the architect of the legislation for abortion which the referendum seeks to allow to be introduced and further that during the campaign he repeatedly commented on the correct interpretation of that proposed legislation.
4. I say that a consistent theme of the “Yes” campaign and that which became the main theme in its final weeks was womens health. I say further that the issue of whether abortion contributes or impairs health was a central issue in the campaign. I say further that Simon Harris, the Minister for Health, with authority over the Department of Health and the HSE and their budgets, clearly identified himself as been (sic) in a position to develop, administer and deliver abortion. I say for example that he made a pronouncement that abortion would be provided free.
5. I say that the various press conferences, media interviews and other events at which Simon Harris appeared promoting a “Yes” vote took place at different times of the day and week. I say further that it was not possible to distinguish, particularly from media coverage, whether such participation in the campaign was taking place in his role of Minister or as a private individual. I say that in the reporting of this campaigning and debate he was consistently referred to as the Minister for Health.
6. I say further that it is apparent from the nature and extent of his role in the “yes” campaign that public monies and expenditure relating to his salary accordingly were expended on that campaign. I say that the Taoiseach and several other government ministers, including the Junior Minister for Health, also involved themselves in campaigning for a “yes” vote, but that the Minister for Health had by far the most prominent role. I say and believe that a fundamental conflict of interest was created by this and that this was clearly foreseeable. I believe and am advised by my legal representatives that the outcome of the referendum was materially effected (sic) as a result.”
“2. I say that as my averments in my first supplemental affidavit state that the Minister for Health played a prominent and continuous role in the referendum campaign for a “Yes” vote. I say by way of evidence of this I refer to media reports that the Minister participated in major Yes campaign launches, including those of Amnesty International on Tuesday, 10th April, 2018 and of the National Womens’ Council on Monday, 14th day of May, 2018. (She exhibits copies of those media reports)
3. I say that the Minister for Health was repeatedly involved in debate, held press conferences, gave television and radio interviews and canvassed voters personally. A further example of his involvement was his participation, together with two Masters of Maternity Hospitals in a press conference organised by the ‘Together for Yes’ campaign, on 21st day of May, 2018. (She exhibits these media reports)
4. I say that the extent of the Minister’s involvement in the Yes campaign is also reflected in his own words after the poll, when he said, ‘I threw everything at this’, Irish Times report of ‘Women’s podcast’ on 28th day of May, 2018. (She exhibits a copy of that report).
5. I say and believe that on Saturday, 12th day of May, 2018, while participating in a ‘National Doctors Together for Yes’ event, that the Minister discussed the recent cervical cancer issue with journalists. This included stating that there was a requirement for better capacity for smear testing laboratories in Ireland. (Report exhibited)
6. I say and believe also that on Thursday, 17th day of May, 2018 the Minister for Health announced that free contraceptives would be readily available next year to reduce crisis pregnancies. He was also reported as saying an expert group would be set up by his department to determine the exact type of female contraceptive to be included and examine medical points of view. The Minister also said: ‘What we are trying to make clear to the Irish people is we want a situation where terminations are legal in this country, are safe in this country, and are ultimately rare in this country’. (Report exhibited)
11. Ms. Jordan does not allege, as did Mr. Byrne, that the Minister for Health had no entitlement to speak in favour of a Yes vote in the referendum campaign. Rather she contends, to quote counsel:-
11. I say and believe and am advised by my legal representatives that which I depone herein and heretofore is prima facie evidence of interferences with the conduct of the referendum such has (sic) had a material affect on its result which questions the provisional referendum certificate and I pray this Honourable Court for leave to bring a referendum petition.”
12. Later, counsel sought to qualify that approach by saying that a member of the Government “should have been informed by the jurisprudence of the courts in respect of governmental involvement”.
“There was a fundamental conflict between that campaign role and the Minister’s duties and responsibilities of office. In that office, he is responsible for the initiation, direction and control of health policies, services and facilities. … and the roles of officeholder and campaigner became conflated when the Minister participated in the national ‘Doctors for Yes’ event held on Saturday, 12th May, 2018 when, in the course of that event, he discussed with journalists present the recent cervical cancer issues. … that was a clear example of the Minister for Health, he quite clearly could be mistaken for the chief proponent of the Yes campaign and the other way around, the opposite also applying, that for a voter, a confusion was being created as to who was speaking.”
13. There was also an argument made to the effect that whilst doing this the Minister was being paid his ministerial salary and thus there was an expenditure of public monies in that indirect way.
14. Finally, it was argued, that the Minister could not speak in favour of the proposal qua Minister nor could he promise or commit departmental policy or funds which “formed a part of the narrative of voting Yes, i.e., contraception in its relationship to abortion”. All of this, it is contended, amounted to unlawful interference with the conduct of the referendum so as to affect materially the result of it.
15. As far back as Crotty v. An Taoiseach  1 I.R. 713 Henchy J. stated:-
16. That entitlement continues and I do not read either McKenna v. An Taoiseach (No.2)  2 I.R. 10 or McCrystal v. Minister for Children and Youth Affairs  I.R. 726 as diluting that entitlement save to prohibit the expenditure of public monies. Indeed in McCrystal’s case Denham C.J. having considered a line of authorities said:-
“There is, of course, nothing in the Constitution to prevent the Government, or any person or group or institution, from advocating or campaigning for or otherwise working for a change in the Constitution.”
17. In the same case Murray J. said:-
“37. (i) The Government is entitled to campaign for a ‘Yes’ vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure. Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense. Any ‘information’ disseminated by the Government at public expense must be equal, fair, impartial and neutral.
(ii) The Government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to advocate the proposed change. Government Ministers may use their State transport in relation to the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members must not spend public monies in favour of one side.”
18. The Minister for Health continued to occupy that office during the course of the referendum campaign. He continued to discharge his ministerial functions. He was entitled to campaign for a Yes vote in the ways identified by Denham C.J. in the passage which I have reproduced from McCrystal’s case. He was entitled to use State transport in relation to the referendum. If he was entitled to do that then he was entitled to continue to be paid his salary as a minister even though campaigning for a Yes vote. He was entitled to answer questions put to him concerning topical issues such as the cervical cancer screening difficulty which arose during the campaign. As Minister, he was entitled to indicate departmental policy on issues falling within his brief whether in relation to the provision of free condoms or, in the event of the referendum passing, whether abortions would be provided at State expense. These are issues which fall within his area of responsibility as Minister for Health. He was entitled to campaign for a Yes vote both as an individual and Minister. There was no conflict or illegality in the Minister for Health continuing to discharge his ministerial function in all its aspects and advocating for a Yes result.
“In a subsequent political campaign neither is the Government nor members of the Oireachtas restricted in their capacity, nor should they be, to advocate one view or another concerning the merits of the proposed amendment to the Constitution. The inhibition that derives from the principles in McKenna v. An Taoiseach (No. 2)  2 I.R. 10 relates to the use of funds from the public purse to advocate one side of the argument to the detriment of others once the matter goes before the People for their decision.”
19. I am not satisfied that Ms. Jordan has demonstrated prima facie evidence of any of the matters specified in s.43 of the Act and in particular of any irregularity in the conduct of the referendum as that term was interpreted by Blayney J. in Hanafin’s case in respect of her complaints against the Minister for Health.
20. Even if I am wrong in that view there is no evidence even of a prima facie nature that such activity materially affected the result of the referendum as a whole.
21. The second part of Ms. Jordan’s complaint is described in her written submissions as “issues with the register of electors”.
22. In her first affidavit she asserts the following:-
23. As is clear much of this is assertion, speculation or inadmissible hearsay notwithstanding the rather relaxed regime which exists in respect of the admission of hearsay evidence on interlocutory applications.
“I canvassed for a No vote for seventeen weeks before the vote on 25th May in Dublin city centre. Initially, the majority of people were in favour of a Yes vote. By the beginning of May there was a shift to No which continued until 24th May.
A foreign journalist informed me on Thursday night, 24th May that the poles (sic) were showing a 2.6 deferential (sic). Within 24 hours the result showed an increase of 20%. Such a swing is not possible.
He said evidence is coming in of large numbers of potential No voters who are unable to vote due to de-registering. These consisted of groups such as convents of nuns and residents of nursing homes.
8. There is also evidence of people not entitled to vote getting polling cards.
9. The thousands of young Irish citizens who were paid to return to vote were not questioned about, their time of residency abroad, at the polling stations.
10. The tally of the number of votes cast by box was not always given when requested by ‘No’ people at the close of voting on 25th. It begs the question then were the number of ballots counted from 9.00am on 26th May the same as the number of ballots in the boxes at 10.00pm on 25th May? If not it could account for the 20% overnight swing.”
24. In her second supplemental affidavit sworn on 20th June, 2018 Ms. Jordan says:-
25. Once again it must be noted that this affidavit likewise contains much by way of assertion, speculation and inadmissible material. In particular is the remarkable and speculative proposition stated in paragraph 10 that by comparison with the 2011 census it “could be estimated that the register was overstated by 15%; that is by at least 200,000 persons but perhaps that over registration could be as many as 600,000 persons”. These affidavits go nowhere near establishing what s.42 of the Act requires.
“Since I made initial application to the court, I have since requested anyone with relevant information as to possible irregularities in voting to contact me. I have received to date more than 80 reports of persons with serious complaints in this regard including many persons receiving two polling cards and two persons having received three. I have also received what I would consider reliable reports of unannounced de-registration, questionable voting and of refusal to provide postal votes. I also say that I have received reports of issues with the maintenance, security and transport of ballot boxes and of persons being unable to get ballot box tallies at the close of voting. I say that a number of those who have informed me of these matters have indicated that they are willing to depone as to these facts.
8. I say that the context for the serious issues with registration and voting which I describe hereto above illustrates the well reported systemic large scale problem with the electoral register. I say and believe that this raises legitimate concerns for the validity of the referendum process and result. I also say and believe that the process is open to manipulation and/or abuses.
9. I say that a recent OECD report ranked Ireland 137th in the world for voter registration processes and that the electoral integrity project (EIP), an independent academic study, scored Ireland 32 out of 100 for perception of electoral integrity. (report exhibited)
10. I say that a Newstalk media report for 25th January, 2016 stated that, by making comparison with the 2011 census, it could be estimated that the register was overstated by 15%; that is by at least 200,000 persons but perhaps that over registration could be as many as 600,000 persons. I say that the author of this article has indicated his willingness to give oral evidence to the court in respect of this matter, including also the situation following the 2016 census and the issues generally with the register. I say further that the serious issues with the register had been in the public domain for several years but that despite acceptance by government of the need for remedial action including the need for an electoral commission nothing has been done. (copy report exhibited)
11. I say and believe and am advised by my legal representatives that which I depone herein and heretofore is prima facie evidence of interferences with the conduct of the referendum such has (sic) had a material affect on its result which questions the provisional referendum certificate.”
26. In her third supplemental affidavit Ms. Jordan set out a series of pieces of information given to her by named persons concerning, for the most part, people receiving in excess of one polling card or other persons indicating a discrepancy between the total vote count and a tally or failure to permit a person to record the ballot box identity and various other matters of that sort.
27. The assertions contained in these affidavits fail to demonstrate what is required on this application.
28. On this part of the case there is no prima facie admissible evidence of wrongdoing of the type required under section 43. Speculation is not evidence. Mere assertion is not evidence.
29. Having reached this conclusion on an assessment of the affidavit evidence alone, I do not have to consider the argument made by the respondents to the effect that the statutory provisions which relate to the electoral registration process is the responsibility of local authorities and not these respondents. There is a mechanism in place for a person dissatisfied with that and a procedure which must be followed. The electoral registration process has an annual cycle and, it is argued, is a distinct self contained statutory process remaining separate and apart from the conduct of a poll. However, I do not propose to engage in any further consideration of this argument made by the respondents since it is not necessary to do so.
30. No prima facie evidence has been adduced to show that the wrongdoings alleged by Ms. Jordan had a material affect on the result of the referendum as a whole. All that I said on this topic in Mr. Byrne’s case is applicable here. In particular I repeat what I said on the relevance of the size of the margin in favour of the repeal and call attention to the observations in particular of O’Donnell J. in Jordan’s case in this regard.
31. I am not satisfied that Ms. Jordan has produced prima facie evidence of any of the material which she must before this court could grant leave to present a petition. She has not placed before the court prima facie evidence of any matters referred to in s.43 of the Act. Neither has she presented prima facie evidence that what she complains of is such as to affect materially the result of the referendum as a whole. Consequently, I refuse leave to present a petition.