The Supreme has today unanimously rejected a challenge taken by a private citizen which stemmed from the Childrens’ Referendum which was held in 2012 but which could not yet fully become part of the law of the land until this challenge was resolved.
The genesis for the case was the Supreme Court’s ruling in the McCrystal case which unanimously held that the Government had illegally interfered with the Childrens’ Referendum by running a biased information campaign with tax payers’ money in clear violation of the earlier McKenna principles.
Ms Joanna Jordan was challenging the outcome of the referendum using a little explored process contained in the Referendum Act, 1994 whereby the result in a Referendum can be set aside if illegal interference by the State in the Referendum process had a “material affect” on the outcome.
She was also challenging the Referendum Act, 1994 itself, claiming that the Act sets too high a burden upon those who are seeking to set aside referendum results, to the point where it is virtually impossible for a petitioner to succeed. She claimed that given the near impossible burden, the State is allowed to act with near impunity – free to illegally interfere, knowing that the petitioners can never succeed. Jordan claimed that in such petitions the burden of proof should shift from the petitioner to the State where illegal activity was clearly established.
It is a core value of our democracy that the sovereign will of the people be respected at all times and cases such as Jordan and McKenna set two competing elements of that sovereignty against each other. On the one hand, the people must be allowed to cast their votes in a free and fair manner without interference; but on the other hand, unelected Courts are understandably very slow to be seen to overturn the will of the people as expressed in a referendum, even where it may seem that a referendum process was tainted by illegality.
Much of today’s Supreme Court decision focused on what test should be used in order to assess if illegal activity has had a “material affect on the outcome of a referendum”.
The Court held that “…’material affect on the outcome of a referendum’ involved 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 longer trust, the outcome of the election or referendum”.
The Court also went on to hold that the Act itself was not unconstitutional and that the burden of the test was reasonably proportionate to the gravity of the relief sought.
Ultimately this decision in of itself is not surprising. While there is no doubt the Government made a significant error by engaging in illegal and entirely unnecessary behaviour during the Childrens’ Referendum, it was never likely that any Court would interfere with the sovereign will of the people as expressed at the referendum (described as an “awesome undertaking” by the Supreme Court in the Hanafin decision in 1996). The more pertinent questions which emerge from the aftermath of this case are about the entire referendum process itself: how we provide information to the people on the question they are voting on, and how we ensure that Governments don’t interfere illegally with the People’s sacred right to amend their own Constitution. If further challenges like McKenna, Hanafin, McCrystal and Jordan are to be avoided in the future, serious consideration needs to be given to how these challenges are met, and today’s judgment should be the beginning rather than the end of that conversation.