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.