Joanna Jordan, of St Kevin’s Villas, Glenageary Rd Upper, Dún Laoghaire, Co Dublin, who campaigned for a no vote, has petitioned the High Court for leave to mount the challenge.
The second petitioner is Nancy Kennelly of Abbot Close Nursing Home, Askeaton, Co Limerick, who voted yes by post before the Supreme Court ruled that some information distributed by the Government during the referendum campaign was not impartial.
The vote was passed by a majority of 58% to 41% on a 33.49% turnout.
Mr Justice Iarfhlaith O’Neill directed the State be placed on notice of the application by the women for leave to bring a petition challenging the result. The case will come before the court again next Tuesday.
The women claim the Government’s use of public money to fund an unbalanced information campaign on the amendment to the Constitution amounted to wrongful conduct that materially affected the outcome of the referendum.
Earlier this month, the Supreme Court, upholding Dublin engineer Mark McCrystal’s challenge to the Government’s information campaign, found “extensive passages” in the Government’s information booklet and website did not conform to the 1995 Supreme Court judgment in the McKenna case requiring referenda to be explained to the public in an impartial manner. The material contained a misstatement as to the effect of the referendum, it also found.
Yesterday, Mr Justice O’Neill agreed with Paul Sreenan SC, for the petitioners, they will need to have the text of the full Supreme Court judgment, to be delivered on Dec 11, before their application for leave to bring the petition may be heard.
The women are also seeking leave to bring a parallel challenge to the constitutionality of those provisions of the Referendum Act 1994 which require that those seeking leave to bring a petition challenging the outcome of a referendum must first show a referendum was “affected materially” by an irregularity.
The standard of “material” effect set out in sections 42 (3) and section 43 of the Referendum Act 1994 is too high, they claim.
Those sections provide that the High Court cannot grant leave to present a referendum petition unless it is satisfied there is prima facie evidence the result was affected materially by an offence set out in the Electoral Act 1992 or there was obstruction or hindrance to the conduct of the vote.
The women contend the onus should be on the entity that has committed any wrongful conduct to show that breach did not have a material effect on the referendum. Alternatively, they contend there should be no burden on a petitioner to show an effect on a poll in order to be entitled to a remedy or, of there is to be a burden, that should go no further than requiring them to show the alleged wrongful conduct “may” have affected the referendum.
The petition is also supported by an affidavit by journalist John Waters, who advocated a no vote.
In her affidavit, Ms Jordan said she felt it would be appropriate to vote no because she was unhappy the State would be given power to step into the shoes of parents in making critical decisions affecting children. She was extremely concerned about the Government’s information material and believed it was one-sided and not impartial or balanced.
While campaigning for a no vote, it became apparent voters had a mistake understanding of the impact of the referendum and believed, for example, in certain extreme cases, children could not be taken into care unless the amendment was passed she said. It was obvious the Government information influenced people into voting yes, she said.
In her affidavit, Ms Kennelly said that by voting by post, she particularly relied on the information provided by the Government which appeared to her to be exclusively in favour of a yes vote. She placed particular emphasis on that information and trusted the Government to provide her with fair and impartial information.
She believed she and others were hugely influenced by the Government’s material and, had she had impartial information, may well have voted against the amendment, she said.
In an affidavit, Mr Waters said the Government’s information cannot but have influenced voters to vote yes and he expressed disappointment with the Government’s response to the Supreme Court ruling.
He believed the no campaign may have been successful had the Government not breached the Constitution in its conduct, he said.
He said the Government information amounted to an unbalanced and unfair presentation of the issues.