CONSTITUTIONAL CHALLENGE TO THE REFERENDUM CHALLENGE

We were back in the High Court this week representing Ms Joanna Jordan in her challenge in relation to the Children Referendum.

Readers may recall that a related challenge was heard in the High Court in May 2013. Mr Justice McDermott determined that matter in late October and declined to grant our client’s petition to annul the provisional referendum certificate. We subsequently lodged a Supreme Court appeal and it is expected that the appeal will be heard in the Spring. 

We returned to the High Court this week to make arguments in relation to our challenge to the constitutionality of the Referendum Act 1994. These arguments were not fully argued in the petition proceedings in May and by necessity were initiated by way of plenary proceedings. The plenary proceedings are distinct from the petition proceedings which challenged the provisional referendum certificate itself. 

The constitutional challenge was before Mr Justice McDermott over three days this week and consisted of legal arguments by counsel representing the petitioner and the State. Our client’s core argument is that specific provisions of the 1994 Referendum Act are unconstitutional as they do not provide her with an effective remedy against the breach by the State of the McKenna principals in relation to the Children Referendum, as established in the McCrystal case. We are saying that it is impossible for our client to win her case because the standard of proof required by the Act means that unless we can show that the “Yes” vote would have been a “No” vote had the Government acted legally, we are bound to lose. Given that the ballot was a secret ballot, we say it was impossible to prove that people would have voted in a particular manner if the Government acted within the law. 

Mr Justice McDermott reserved judgment today and we anticipate that a decision will be handed down in the new year.

Rebecca Keatinge

Brophy Solicitors

SUPREME COURT APPEAL IN REFERENDUM CHALLENGE

Brophy's Law Blog

We act for petitioner Ms Joanna Jordan in her challenge to the outcome of the Children Referendum. We attended the High Court last Friday when Mr Justice McDermott gave his judgment in this important case. 

Mr Justice McDermott granted leave for our client to present her petition to challenge the provisional referendum certificate. He accepted that the petitioner had established a fair bona fide issue to be tried. He was also satisfied that the petitioner had raised a serious issue to be tried that the government information campaign had the potential to materially affect the result of the Referendum as a whole. 

Mr Justice McDermott declined however to grant the petition. The Judge was not satisfied that on the balance of probabilities the evidence showed that the wrongful conduct of the Government in their information campaign materially affected the result of the Referendum as a whole. 

Last Friday, we confirmed our petitioner’s instructions to appeal the decision of Mr Justice McDermott to dismiss the petition. We immediately sought a stay on the Order of the High Court to enable our client to lodge her Notice of Appeal with the Supreme Court. The stay was essential in order to avoid the provisional referendum certificate being confirmed and the Amendment to the Constitution passing into law. In such circumstances, our client would have been denied a right to appeal and her challenge would have been moot. 

The High Court granted us a stay on the Order for a period of two weeks. Today, Thursday, we filed a Notice of Appeal with the Supreme Court on behalf of the petitioner. We also made a application for a priority hearing to the Supreme Court this morning, that was granted by Chief Justice Denham. Chief Justice Denham confirmed that the stay will be extended until the conclusion of the Supreme Court appeal. Unfortunately the Court indicated this morning that the hearing of the Supreme Court appeal will not take place until 2014.

Brophy Solicitors