Will Childrens Referendum Result be reversed?

goz83

Sorry if this has been covered, but I haven't had much chance to observe the news lately and can't find much information on this.

I'm wondering if the result of the referendum is likely to be reversed, considering the High Court found that the information distributed was biased for a Yes Vote and if the material was balanced, the result may have been different. Any news on this?

Chips Lovell

I doubt it, given the precedent of what happened after the Divorce referendum. Des Hanafin challenged the result on the grounds of the McKenna judgement and it was rejected.

At the end of this evidence a three-judge division of the High Court found it had not been established in the evidence adduced that the government’s publicly funded publicity campaign had had any ascertainable influence on the electorate when they had cast their votes.

When Hanafin appealed, the Supreme Court found that there was no basis on which it could interfere with the High Court’s finding that the government’s advertising campaign had not materially affected the result of the referendum.

Given that the margin of victory in the Childrens referendum was far higher than the Divorce referendum, if the same thinking is applied again, it's hard to see the courts overturning it.

goz83

But the turnout was significantly different. The divorce referendum showed almost 71% turnout, where the childrens referendum was only 34%. I believe that many people didn't vote, because they didn't want to vote against children and because they were ill informed.

The only thing I remember about the divorce referendum was Pearse Brosnan on the late late show saying that Irish people should have the right to divorce. Something I agreed with, even though I was about 12.

However, I believe that if people had of been properly informed, the result may have been different. I'm not pushing for a NO vote. I actually voted no, hoping that the whole thing would have to go back to the drawing boards to iron out any concerns and then inform the public properly.

The turn out was also very poor.

Chips Lovell

Going by what happened to Hanafin, what you need to do is prove not just that the information wasn't neutral, but that it affected the result. That's pretty difficult to do.

The irony in the situation is that the government introduced its own information campaign because they people were complaining that they weren't being informed enough about earlier referendums. It's kind of a case of damned if you do and damned if you don't.

goz83

Vladimir Kurtains wrote: »

Going by what happened to Hanafin, what you need to do is prove not just that the information wasn't neutral, but that it affected the result. That's pretty difficult to do.

The irony in the situation is that the government introduced its own information campaign because they people were complaining that they weren't being informed enough about earlier referendums. It's kind of a case of damned if you do and damned if you don't.

After doing a little research, it turns out that two women are challenging the very issue you mentioned re the hanafin case. The full article is => http://www.independent.ie/national-news/courts/high-court-challenge-to-childrens-referendum-yes-result-3300273.html

but here is the part, which is interesting:

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.


The woman 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 referendum in order to be entitled to a remedy or, if 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.



I fully agree with this. The government have been shown to be wrong here, so they should have to prove that their information campaign did not materially effect the result.

oscarBravo

goz83 wrote: »

...they should have to prove that their information campaign did not materially effect the result.

How?

goz83

How what? Is that question reversible to the accused party?

oscarBravo

goz83 wrote: »

How what?

How would the government go about proving that their information campaign didn't affect the result?

Is that question reversible to the accused party?

I don't understand the question.

goz83

oscarBravo wrote: »

How would the government go about proving that their information campaign didn't affect the result? I don't understand the question.

By "reversible", I meant, How would the women go about proving that the Governments biased information campaign did affect the result?

The High Court has already ruled that entire sections of the Governments information leaflets and website were biased. Taking that into account, the onus should be on the Government to prove that their campaign, funded with our money, did not materially affect the result of the referendum.

Chips Lovell

Question. If you're the one taking the case, should the onus be on you to prove that your allegation is correct?

goz83

Vladimir Kurtains wrote: »

Question. If you're the one taking the case, should the onus be on you to prove that your allegation is correct?

In most cases, I would agree with that sentiment. However, in the case of the referendum, the Government chose not to make any amendments to the wording of their biased campaign, with the exception of the website, after being forced to make changes.

In your opinion only; do you think the governments campaign affected the result, regardless of what you voted?

What do you think should be done?

oscarBravo

goz83 wrote: »

By "reversible", I meant, How would the women go about proving that the Governments biased information campaign did affect the result?

OK, let me try to put the question neutrally: how would a disinterested party go about proving that the government's information campaign either did or did not materially affect the result?

goz83

oscarBravo wrote: »

OK, let me try to put the question neutrally: how would a disinterested party go about proving that the government's information campaign either did or did not materially affect the result?

There is no way to prove it, which I am aware of. It would be like trying to prove that a falling tree in the miidle of the forest, with not a soul around, made a sound when it fell. We all know it made a sound, but who can prove it?

I suspect this is the primary reason the women are attempting to shift the onus of proof to the Government. Anyhow, we're not in the legal forum, this is the politics forum and the discussion has taken a different route.

The right thing to do would be to fine the government and hold another referendum with neutral, unbiased, factual information that people can actually vote on.

Chips Lovell

goz83 wrote: »

In most cases, I would agree with that sentiment. However, in the case of the referendum, the Government chose not to make any amendments to the wording of their biased campaign, with the exception of the website, after being forced to make changes.

Wasn't the judgement two days before the poll? They could hardly print up and distribute an amended leaflet in that time, so it seems only reasonable that the website could be changed.

goz83 wrote: »

In your opinion only; do you think the governments campaign affected the result, regardless of what you voted?

What do you think should be done?

Having read the material and the Referendum Commission's own stuff, my own opinion is that it didn't. It would have needed to sway around 85,000 people into voting yes when they wouldn't have if they hadn't read it. But my opinion matters little. It's up to the courts.

oscarBravo

goz83 wrote: »

There is no way to prove it, which I am aware of. It would be like trying to prove that a falling tree in the miidle of the forest, with not a soul around, made a sound when it fell. We all know it made a sound, but who can prove it?

I suspect this is the primary reason the women are attempting to shift the onus of proof to the Government.

But you're basically saying that it's not fair that the claimants should have to prove their case because it's impossible to prove, so the right thing to do is to force the government to prove their case, even though that's impossible too.

That's just a circuitous way of saying "I want the court to find in favour of the side I agree with."

The right thing to do would be to fine the government and hold another referendum with neutral, unbiased, factual information that people can actually vote on.

In order to order the holding of another referendum, the court would first have to set aside the decision of the people and reverse our express decision to change the constitution. The court is, quite rightly, very hesitant to decide that the people didn't know what they were doing when they voted as they did.

goz83

Vladimir Kurtains wrote: »

Wasn't the judgement two days before the poll? They could hardly print up and distribute an amended leaflet in that time, so it seems only reasonable that the website could be changed.



It's up to the courts.

They could have postponed the referendum, which would have been the right thing to do. You can be sure as hell that if a "NO" vote had carried, the Government would have blamed the fact that the court found their material to be biased, in order to announce another childrens referendum.

Indeed the decision is up to the courts. I don't know if I would vote yes, or no again, but I do know that people deserve neutral and factual information about what they are to vote on.

oscarBravo wrote: »

But you're basically saying that it's not fair that the claimants should have to prove their case because it's impossible to prove, so the right thing to do is to force the government to prove their case, even though that's impossible too.

That's just a circuitous way of saying "I want the court to find in favour of the side I agree with." In order to order the holding of another referendum, the court would first have to set aside the decision of the people and reverse our express decision to change the constitution. The court is, quite rightly, very hesitant to decide that the people didn't know what they were doing when they voted as they did.

I'm saying that the whole thing isn't fair. If the Government believed that the vote would have passed, they would hold the referendum again. I don't see the decision as being a valid one, because the people were sold a lie by those we're supposed to trust.

oscarBravo

goz83 wrote: »

They could have postponed the referendum...

I'm fairly certain they couldn't, without calling a general election.

I'm saying that the whole thing isn't fair.

Be that as it may, the courts have to make a decision as to whether or not to overrule the result of a referendum. Given that the people have the sole authority to amend the constitution, that's a decision the court is - rightly - very, very hesitant to make.

If the Government believed that the vote would have passed, they would hold the referendum again.

If another referendum were run, it would have to ask us whether we wanted to reverse the previous one - we've already voted to amend the constitution. The government has no motivation to run such a referendum, and I for one wouldn't be too impressed with the money that would be wasted on such a move.

I don't see the decision as being a valid one, because the people were sold a lie by those we're supposed to trust.

If the validity of the result of a referendum is dependent on the electorate trusting the government, there will never be a valid referendum result again. Trusting governments isn't in the electorate's nature.

We keep being told when voters make stupid decisions at the ballot box that it's their god-given right to vote any way they want. For better or worse, this is true: there's no legal requirement for an individual voter to make any effort to educate him- or herself about the issues or the candidates. That's a two-edged sword, though. If we can't force the electorate to make an informed choice, we don't get to set aside the decision of the electorate if we decide that their misinformation produced the wrong result.

I don't know what to do about it. to be honest. The idea of fining the government is inherently nonsensical, because the fine would be paid out of public funds back into public funds. I guess the lesson is to listen to both sides of the argument, make up your own mind, and don't assume that anyone other than the referendum commission is completely objective when telling you what the issues are.

goz83

Fine them as individuals, rather than fining the state. The rules were broken and a serious decision was made, which affects all parents and children. They shouldn't be able to hide behing the Government shield. Company directors can be fined personally and go to prison for misleading people, so why can't heads be rolled in this case? Anyway, i've said enough on this. Other stuff has come up.

oscarBravo

goz83 wrote: »

Fine them as individuals, rather than fining the state.

Which individuals?

The rules were broken and a serious decision was made, which affects all parents and children.

The decision was made by the people of Ireland, who have the final say in the matter. If you're going to demand a re-run of the referendum because the people were misled, can I demand a re-run of every election I've ever voted in? I'm fairly confident I have been misled by damn near every candidate that ever asked for my vote.

They shouldn't be able to hide behing the Government shield. Company directors can be fined personally and go to prison for misleading people, so why can't heads be rolled in this case?

Because there's no equivalent of the Companies Acts to allow for such fines. We can't just make up laws on an ad-hoc basis to assuage our feelings.

goz83

oscarBravo wrote: »

Which individuals? The decision was made by the people of Ireland, who have the final say in the matter. If you're going to demand a re-run of the referendum because the people were misled, can I demand a re-run of every election I've ever voted in? I'm fairly confident I have been misled by damn near every candidate that ever asked for my vote. Because there's no equivalent of the Companies Acts to allow for such fines. We can't just make up laws on an ad-hoc basis to assuage our feelings.

Fine whoever was responsible for releasing the biased info to the public. We can make up laws to tackle this sort of thing. This is how laws are made.

oscarBravo

goz83 wrote: »

Fine whoever was responsible for releasing the biased info to the public. We can make up laws to tackle this sort of thing. This is how laws are made.

The government make the laws. I don't think they're all that likely to make a law for the express purpose of allowing themselves to be individually fined, do you?