Irish Supreme Court Ruling May Have Wider Referenda Implications

NEWS FROM THE CELTIC LEAGUE

In its judgement on a petition calling to overturn the result of a 2012 referendum (on children’s rights) the Irish Supreme Court has set out criteria which may be applied in the case of legal challenges to future referenda results.  The court rejected the petition because there was a big difference between the “Yes” and “No” votes and the Government conduct complained of (misinformation) was not likely to have such a great effect.  However, in its deliberation the judges laid down stringent conditions for future judicial decisions on such petitions.

Anthony Coughlan of ‘The National Platform EU Research and Information Centre’ analyses the decision (see below):

Saturday 25 April 2015

STATEMENT BY ANTHONY COUGHLAN ON THE SUPREME COURT’S DECISION ON THE JORDAN / CHILDREN REFERENDUM PETITION

The Supreme Court decision on the Jordan petition on the 2012 Children referendum is an implicit warning to the Government and to the statutory Referendum Commission that any information they might give to the public on how a referendum amendment would affect the Constitution should be accurate and not such as potentially to pollute the referendum result.

Otherwise, as is implicit in the judgement, it is open to citizens to seek a Court injunction against the use of public money to disseminate wrongful information on these occasions, when citizens are legislating directly on whether or not they wish to change the Constitution.

This arises from the new “objective reasonable person” test which a unanimous Supreme Court has applied to the Jordan petition on the Children referendum as against the much more difficult test applied to the Hanafin petition on the result of the 1995 Divorce referendum.

The 1995 Divorce referendum was carried by only 9,000 votes – which was just 0.6% of a total of the 1,634,000 votes cast in a turnout of 62% of registered voters.

Even though the Supreme Court had decided one week before the Divorce poll that the Government had acted unconstitutionally in spending £500,000 of public money in seeking to achieve a Yes-side result, it concluded in its decision on the Hanafin petition that it was impossible to “go behind the backs of the people” and decide how or why any citizen voted as they did because of the secrecy of the ballot, and it declined to overthrow that result.

From the judgement of the Chief Justice given yesterday, it seems that the Supreme Court has moved the goalposts vis-a-vis the Hanafin petition on the Divorce referendum.

The new test on the constitutionality of a referendum result, in the words of the Chief Justice, is as follows:-

“123. The test to be applied by a court is an objective test, an objective consideration of the facts, whether a reasonable person would have a reasonable apprehension that the matter raised by an applicant materially affected the result of a referendum as a whole, so that they could not trust the referendum result. . .

“126. Thus, in this case the Court clarifies the test to be applied when a provisional referendum certificate is challenged. For clarity, I adopt the words of O’Donnell J., i.e.

” … that ‘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.’

” This test is to be applied in all the circumstances of the case. Of course, the circumstances and facts will change from case to case, but the object is to obtain a balance where it is not too easy to overturn the decision of the People, nor impossible.”

Commenting on this Mr Justice Frank Clarke said in his judgement: “…it is important to add that the test identified by O’Donell J. is one which is far from impossible to meet. The problem in this case was that the margin, at the end of the day, was quite significant. . . in a different case, the Court might be faced with a narrower result, coupled with stronger evidence of the effect of unlawful expenditure.” (Par.6.1)

The 1995 Hanafin petition on the result of the Divorce poll failed essentially on the ground that it is impossible to prove why or how anyone voted in a referendum. This test in Hanafin was simply impossible to meet, even though any “reasonable person” – and also professional experts – would agree that spending €500,000 on one-sided Government advertising could make a difference of 5,000 votes and so give a different result in that referendum.

The new test announced in the Court’s decision on the Jordan petition would have allowed the 1995 Hanafin petition to succeed if it had been applied at that time. Ergo – and implicitly in retrospect – Hanafin was badly decided, although the Supreme Court naturally did not say this.

Add to the unconstitutionality of the Government’s one-sided expenditure of public money in the 1995 Divorce poll, the fact of RTE’s misconduct on the same occasion by its allocation of 42 minutes of free broadcasting time to the political parties on the Yes side as against 10 minutes to the No’s in the days leading up to the poll – as was established in the year 2000 Coughlan case – it is clear that any “reasonable person” would have a reasonable apprehension that the matter raised by an applicant “materially affected” the result of the Divorce referendum as a whole, so that they could not trust the result.

Mrs Joanna Jordan’s petition on the 2012 Children’s Rights referendum was argued by her counsel on the assumption that the Supreme Court would seek to be rigorously consistent with the Court’s decision in Hanafin, whereas the Court has effectively moved the goalposts by establishing this new “objective reasonable person” test in deciding on the Jordan petition.

The difference between Yes and No sides in the Children referendum was 170,000 votes – 58% voting Yes as against 42% voting No, whereas the difference between Yes and No in the Divorce poll was 0.6%. The Court decided that the abuse of the Government’s “information campaign” which it had condemned in its McCrystal judgement on the eve of the Children referendum was not such as to be likely to alter the result on that occasion.

In the 1995 Divorce referendum which gave rise to the Hanafin petition the difference between the Yes and No votes was just over 9000, so that a change of 5000 votes would have given a different result then.

A MORAL VICTORY:

This new “objective reasonable person” test which the Supreme Court has laid down for establishing whether illegality or unconstitutional behaviour affects the result of a referendum is a moral victory, if not a legal one, for Mrs Jordan and her legal team.

Mrs Jordan and her counsel should be congratulated for the public service they have rendered by enabling this important new principle for the conduct of Irish referendums to be established.

Comments in the Supreme Court judgements about “the inevitable danger of partiality” in the conduct of Government information campaigns as against the statutory role of the Referendum Commission in informing citizens what the referendum is about, are also to be welcomed.

Irish Governments initiated these one-sided Government “information campaigns” parallel to the information role of the Referendum Commission in order to push through the 2008 and 2009 Lisbon Treaty referendums. They were repeated in the Fiscal Treaty and Children referendums in 2012. Presumably Governments will not repeat such campaigns in future.

Anthony Coughlan
Director
(Associate Professor Emeritus in Social Policy, Trinity College Dublin )”

This judgement will be of interest not just in Ireland but may also be of interest in Scotland which saw prima facie evidence of irregularities during the Independence Referendum count and when the Crown, State, media and the whole establishment threw all its resources behind an irrational and deceptive campaign only to win by a relatively narrow margin.

(My thanks to Mr Coughlan and Irish branch colleagues for undertaking this analysis)

J B Moffatt (Mr)
Director of Information
Celtic League

27/04/15

(Please note that replies to correspondence received by the League and posted on CL News are usually scanned hard copies. Obviously every effort is made to ensure the scanning process is accurate but sometimes errors do occur.)

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