Jordan v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 20 July 2018
• Neutral Citation: [2018] IEHC 438
• Docket Number: [2018 No. 59IA]
• Court: High Court
• Date: 20 July 2018

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

BETWEEN

JOANNA JORDAN

APPLICANT

AND

IRELAND, THE ATTORNEY GENERAL

AND

THE REFERENDUM RETURNING OFFICER

RESPONDENTS

[2018] IEHC 438

[2018 No. 59IA]

THE HIGH COURT

Petition – Referendum – Prima facie evidence – Applicant seeking leave to present a petition – Whether the applicant produced prima facie evidence

Facts: The applicant, Ms Jordan, sought leave from the High Court, pursuant to the provisions of s. 42 of the Referendum Act 1994, 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. The case related to the referendum seeking to delete Article 40.3.3 from the Constitution and replace it with a new Article. Ms Jordan made two complaints. The first concerned the involvement of the Minister for Health in the “Yes” campaign. The second raised issues concerning the register of electors.

Held by Kelly P that he was not satisfied that Ms Jordan had produced prima facie evidence of any of the material which she needed to before the court could grant leave to present a petition. Kelly P held that she had not placed before the court prima facie evidence of any matters referred to in s. 43 of the Act, nor had she presented prima facie evidence that what she complained of was such as to affect materially the result of the referendum as a whole.

Kelly P held that he would refuse leave to present a petition.

Application refused.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 20th day of July, 2018

Introduction

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:-

‘(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.’

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.

6 Ms. Jordan makes no complaint concerning the Referendum Commission and it is not a party to these proceedings.

Complaints

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 possiblethat this irregularity affected the outcome of the poll’. (My emphasis)

The evidence

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:-

‘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.’

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 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...